St. Louis, Iron Mountain & Southern Railway Company v. Raines

• Decision Date: 10 May 1909
• Citation: 119 S.W. 665,90 Ark. 398
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. RAINES
• Court: Arkansas Supreme Court

119 S.W. 665

90 Ark. 398

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. RAINES

Supreme Court of Arkansas

May 10, 1909

Appeal from Hot Spring Circuit Court; William H. Evans, Judge affirmed.

Judgement affirmed.

E. B Kinsworthy and Lewis Rhoton, for appellant.

1. Following the American rule, the matters which go to prove the opposite party's prima facie case, as made up by his witnesses, may properly be gone into on cross examination. 7 Nev. 385; 9 So. Dak. 301; 133 Cal. 285; Reece v Bell, 138 Cal. And it was proper to permit a full cross examination regarding the subject-matter of the examination in chief in the light of all its bearings. 74 Vt. 331; 73 Conn. 743; 115 Ia. 48; 92 Md. 483; 26 Ind.App. 307; 53 A. 720; 52 Conn. 818; 43 W.Va. 196; 175 Pa.St. 361; 25 Wash. 518. All matters connected with and a part of the res gestae of the facts testified to in chief are properly within the limits of cross examination, as also facts closely connected with the main fact. 48 Pa.St. 396; 33 Mich. 319; 124 Cal. 452; 97 Ala. 187. Under the limited rule urged by appellee, it is held that where a witness on direct examination gives only a portion of a material transaction he may be cross examined in full detail concerning the omitted portion. 91 F. 614; 206 Pa.St. 135; 142 U.S. 488; 110 U.S. 47; 42 Ill.App. 225; 112 Ind. 494; 28 Ore. 1. See also 9 Mich. 381; 37 Ill. 465; 89 Ala. 563; 94 Mich. 343; 69 F. 808; 83 Md. 536; 70 Ark. 420; 56 Ark. 550.

2. Giving the appellee's evidence its strongest probative force, it is nowise stronger than that on the first trial, of which this court on appeal said that the testimony fails to show that the man was discovered on the track by the engineer in time to avoid the injury. 86 Ark. 306. It is admitted that deceased was a trespasser, and the burden was on appellee to prove that he was discovered on the track and that appellant's employees, after such discovery, had time to avoid the injury by the exercise of ordinary care. Id. 295; 82 Ark. 522; 69 Ark. 380-382; 65 Ark. 233; 62 Ark. 235; 36 Ark. 371; 45 Ark. 250; 48 Ark. 497; 49 Ark. 257; 64 Ark. 364; 36 Ark. 46.

3. The fourth instruction, which told the jury to take into consideration the advantages and benefits in the way of moral and intellectual training, if any, they might believe from the evidence deceased's children would have received from him if his death had not occurred, is erroneous because there is no evidence to support it. 69 Ark. 384; 52 Ill. 290; 69 Ill. 426.

4. The language used by appellee's attorney in his argument, viz.: "Bill Coyne was bound to tell it that way, and if he did not he would not hold his job 15 minutes;" and further, "Do you believe a railway company would keep a man 30 years who was hostile to them, and would go on the witness stand and give evidence against them?"--was prejudicial and reversible error. 71 Ark. 435; 63 Ark. 174; 70 Ark. 335.

H. B. Means, for appellee.

1. A defendant in an action cannot bring in his defense under the guise of cross examination, but must either wait until he has opened his case or introduce his defense as his testimony in chief. 100 U.S. 625; 14 Pet. 448; 1 Wall. 702; 1 Greenleaf, Ev. §§ 445-447; 1 Wharton, Ev. § 529; McKelvey, Ev. § 246; 175 Pa.St. 361; 66 Barb. (N. Y.) 527; 83 N.Y. 436. See also 14 Ark. 555; 77 Cal. 324; 23 Col. 456; 70 Conn. 76; 38 Fla. 169; 173 Ill. 553; 110 Ind. 390; 113 Ia. 16; 36 Kan. 754; 56 Md. 439; 54 Neb. 109; 35 Ill. 486. The latitude to be allowed on cross examination is largely within the discretion of the trial court, and a case will not be reversed on that account unless such discretion is greatly abused. 97 Ala. 682; 174 U.S. 727; 142 Ind. 55; 61 Ia. 28; 54 A. 88; 60 Neb. 531; 52 Pa. 531; 5 Wash. 613; 73 Wis. 147. Where it is sought to cross examine a witness, and objection thereto is sustained, if the witness is afterwards asked and answers the same questions which were before refused, such refusal is not ground for reversal. 60 Neb. 531; 41 Ore. 151.

2. The evidence establishes the facts that at the time the engineer blew the alarm whistle he realized Raines's peril, that he had ample time and space in which, by the exercise of ordinary care, to stop the train and avoid the injury, and that he exercised no such care. It was, therefore, sufficient to sustain the verdict. 97 S.W. 1067, 1069; 74 Ark. 479; 69 Ark. 383; 46 Ark. 523; 50 Ark. 477; 74 Ark. 407; 74 Ark. 478.

3. The court sustained appellant's objection to the argument of appellee's counsel, and disapproved of it. Nevertheless, Coyne having materially changed his testimony, it was a subject of legitimate criticism.

OPINION

FRAUENTHAL, J.

On June 16, 1907, J. E. Raines attempted to cross the defendant's railway track at a stockguard located about one-half mile from its station, Gifford; and his foot got caught in the stockguard, so that he could not extricate it, and he was run over and killed by defendant's passenger train. The plaintiff, as the administrator of his estate, instituted this suit for the benefit of his widow and next of kin for the sum of $ 10,000 damages.

There was a former trial of the case in the circuit court, which resulted in a judgment in favor of the plaintiff; and the defendant took an appeal therefrom to this court. Upon that appeal the judgment was reversed by this court, and the cause remanded for a new trial. The opinion delivered on that appeal is reported in 86 Ark. 306 (St. Louis, I. M. & S. Ry. Co. v Raines). Upon the second trial of this case in the circuit court a verdict was returned in favor of plaintiff for $ 5,000, and from the judgment rendered thereon defendant prosecutes this second appeal.

It is urged by the defendant that the evidence is not sufficient to sustain the verdict. In the consideration of this question we must give to the testimony in favor of the plaintiff its strongest probative force and apply that to the law of cases of this character. The evidence tended to prove that plaintiff's intestate attempted to cross the defendant's railway track at a stockguard, and in doing so his foot got caught therein; and either in endeavoring to extricate his foot, or otherwise, he fell, so that he was lying on the track with his body between and nearly parallel with the rails. The defendant's passenger train had stopped at Gifford, about one-half mile from the cattle guard, and after leaving that station was going at a rate of speed, when near the cattle guard, of from 25 to 35 miles an hour.

The engineer testified that he discovered an object on the track, and in a moment was impressed that it was a man and immediately blew the whistle and put on brakes.

On this trial he said he was not over 200 feet or 100 yards away when he discovered it was a man. On the former trial he said he was between 100 yards and 200 yards away when he discovered it was a man. He was further asked by plaintiff's counsel if he saw any object about the track, and he replied that in giving evidence as to that he would first have to see what he said at the coroner's inquest. He finally said he did see an object, and was impressed that it was a man, just beyond the cattle guard near the track. He testified that he blew the whistle as soon as he saw the object on the track, and he also testified that he put on brakes when he first saw the object on the track. The train was 60 yards in length, and after striking Raines ran the full length of the train before it stopped.

No other witness testified to seeing deceased as the train struck him; a number of witnesses saw the train at the time the engineer blew the first whistle just before the train ran over Raines. Three witnesses testified that they saw the train at the time the danger blast of the whistle was thus given; they were at different places, but they saw the train, noticed it when this alarm whistle sounded, located the train at that time by the objects by the side of the road, and afterwards measured the distance to the cattle guard; and the distance as testified to by them was from 202 to 200 yards. These witnesses were situated so that they could and did see the train at that time; and their testimony was sufficiently definite and certain as to these facts. An engineer of many years' experience testified that the passenger train, at the rate of speed it was going on this occasion, could, by the exercise of ordinary care, have been stopped in a train's length, or in a distance of 60 yards.

It is true in this case that Raines was a trespasser upon defendant's track; but still under the law the defendant owed him a duty. That duty this court has repeatedly stated. When the employee of a railroad company discovers the perilous situation of a trespasser upon its track, he must, after such discovery, use a proper degree of care to avoid injuring him. "If the employees in charge of the train see a man walking upon the track at a distance ahead sufficient to enable him to get out of the way before the train reaches him," they have the right to rely on human experience and to presume that he will get out of the way, and so need not check the train.

"If however, the man seen upon the track is known to be, or from his appearance gives them good reason to believe that he is, insane, or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, they have no right to presume that he will get out of the way, but should act upon the hypothesis that he might not or would not, and should use a proper degree of care to avoid injuring or killing him. Failing in this, the railroad company would be responsible for damages if by the use of such care, after becoming aware of his negligence, they could have avoided injuring him." St. Louis, I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 513; ...