St. Louis, Iron Mountain & Southern Railway Company v. Watson
| Decision Date | 13 February 1911 |
| Citation | 134 S.W. 949,97 Ark. 560 |
| Parties | ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WATSON |
| Court | Arkansas Supreme Court |
Appeal from Boone Circuit Court; Brice B. Hudgins, Judge; reversed.
Judgment reversed and cause remanded.
W. E Hemingway, E. B. Kinsworthy, Horton & South and James H Stevenson, for appellant.
1. Up to the point when deceased was struck, this case is a typical one of contributory negligence. One who of his own choice attempts to cross a railroad track ahead of a train which he knows is near and approaching, and is injured in the attempt is guilty of such contributory negligence as will bar a recovery. 54 Ark. 431.
2. There is no warrant, either by statute or common law, for an action by two out of ten heirs at law for their own benefit founded on loss of support and training during minority, occasioned by the death of the father by wrongful act of the defendant. 4 Sutherland on Damages, § 1259; Kirby's Dig. §§ 6289, 6290; 53 Ark. 117, 127.
3. Where contributory negligence of the injured party appears from his own testimony, and he relies upon the doctrine of discovered peril, the burden is on the plaintiff to prove that the peril of the injured party was discovered in time to have prevented the injury by the use of ordinary or reasonable care, and that there was a reckless disregard of his safety and failure to use such care after such peril was discovered. 69 Ark. 380; 77 Ark. 401.
4. The court erred in charging the jury in effect that the appellant would be liable if they found that, in removing the engine from over the body of Watson, "any part of said engine in so moving struck said Watson and was the cause of his injuries, and that said injuries contributed to his death.' Deceased was a trespasser, and the measure of appellant's duty to him was not to wilfully or wantonly injure him. 3 Elliott on Railroads, §§ 1253, 1254; 52 Ark. 120; 61 Ark. 617; 36 Ark. 41; 49 Ark. 257; 50 Ark. 477, 483; 47 Ark. 497; 69 Ark. 380; 76 Ark. 10; 83 Ark. 302.
5. The sixth instruction, placing the burden on the defendant to show that it used reasonable care, etc., after discovering the peril of deceased, is clearly not the law. 69 Ark. 380, 382; 86 Ark. 306; 82 Ark. 522; 83 Ark. 300.
Guy L. Trimble, for appellees; G. J. Crump and E. G. Mitchell, of counsel.
1. As to whether or not the evidence is sufficient to sustain the verdict, the court on appeal will draw the strongest inference in favor of the verdict that it is warranted in deducing from the evidence. 74 Ark. 478; 67 Ark. 399.
2. No question was raised in the lower court of appellee's right to maintain this suit, and that question can not be raised here for the first time. 71 Ark. 242; 26 Ark. 660; 70 Ark. 197; 64 Ark. 305; 43 Ark. 34.
3. The fourth instruction is right. The proof shows that appellant negligently removed the engine from over the deceased, and the question whether it was negligently done was by the instruction submitted to the jury. 69 Ark. 383; 93 Ark. 461; 46 Ark. 523.
4. The sixth instruction when considered in connection with the fifth given for plaintiffs and the sixth given for defendant, correctly declares the law. Deceased was attempting to cross the track at a public crossing, and was therefore not a trespasser. 93 Ark. 24. The instruction merely places the burden on the defendant where the peril is discovered in time to have prevented the injury. 62 Ark. 239; 46 Ark. 523; 74 Ark. 478.
This is an action instituted by the children of William Watson, deceased, as heirs at law of said decedent, to recover damages resulting from the killing of said decedent by one of defendant's passenger trains at Bergman, Ark., on June 27, 1907. The plaintiffs alleged in their complaint that Watson was a widower at the time of his death; that he died intestate, leaving them as his only heirs at law, and that there has been no administration on his estate.
Watson intended to board a passenger train at Bergman, and as it came to the station he attempted to cross the track in front of the approaching engine, so as to get to the place where he could board the train when it stopped. The cow catcher or pilot of the engine struck him as he attempted to pass in front of it, and he fell over it and was carried along a considerable distance--probably 100 or 150 feet, when he rolled off, and was drawn under it and carried about 30 feet further. The train came to a stop, and the engine was backed, so as to get him out, and he was found to be badly injured, and died in about two hours.
The surgeon who was called and saw him immediately after the engine was moved from over him described his injuries as follows:
During the progress of the trial, the action was dismissed as to all the plaintiffs except Annie and Lee Watson, this being done, according to the recitals of the record, by agreement of all the parties.
The trial resulted in a verdict for the plaintiffs, their damages being assessed separately; and judgment was rendered accordingly, from which this appeal is prosecuted.
The action as originally instituted properly joined as plaintiffs all the heirs at law of the decedent. There being no personal representative of decedent's estate, the action could, under the statute, be brought in the name of the heirs at law. Kirby's Digest § 6290. But all of the heirs should have been continued as parties. McBride v. Berman, 79 Ark. 62, 94 S.W. 913. The defendant, however, consented to the dismissal of the action by the other plaintiffs, and raised no objection to the right of the remaining plaintiffs to sue. The...
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