St. Louis, Iron Mountain & Southern Railway Co. v. London

• Decision Date: 25 March 1907
• Citation: 102 S.W. 212,82 Ark. 267
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. LONDON
• Court: Arkansas Supreme Court

102 S.W. 212

82 Ark. 267

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

Supreme Court of Arkansas

March 25, 1907

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge reversed.

Reverse and remanded.

Oscar L. Miles, for appellant.

1. Appellee's intestate, an old man, very deaf, and of failing eyesight, was walking along appellant's railroad track, at about noon. For about a mile west of the trestle where he was struck, from which direction the train was coming, the track was perfectly straight, and nothing intervened to obstruct his view. He did not look for a train as he approached the track, nor after he reached it and started across the trestle. A clear case of contributory negligence on the part of the deceased, without which the injury would not have occurred, and no recovery can be had unless the train operatives, after becoming aware of his negligence and peril, failed to use the proper degree of care to avoid injuring him. 46 Ark. 513. It is in proof that the engineer saw him as he approached the track and supposed he would leave the track in time to avoid being struck. This supposition he had the right to indulge. Ib. When deceased started onto the track, the engineer realized, for the first time, that he had not discovered the train, and immediately used all means and appliances with which the train was equipped, which were of the best character possible, to stop it. Deceased was a naked trespasser, and the defendant was guilty of no negligence after discovering his peril. Ib.; 47 Ark. 502; 36 Ark. 41; Ib. 371; 45 Ark. 246; 49 Ark. 257; 76 Ark. 10.

2. Plaintiff's contributory negligence having been shown the burden then rested upon plaintiff to show that defendant's employees in charge of the engine wantonly, wilfully and recklessly failed to exercise the proper care and diligence to avoid the injury. 69 Ark. 383.

J. E. London and W. A. Gillinwaters, for appellee.

The testimony shows wanton and wilful negligence on the part of the engineer. This was clearly a case for the jury, under the facts and testimony; and, the case having been submitted to them under correct instructions from the court, their verdict ought not to be disturbed. 144 U.S. 417; 46 Ark. 142; 51 Ark. 167; 56 Ark. 314; 47 Ark. 196; id. 469; 78 Ark. 43.

OPINION

BATTLE, J.

T. J. Kinsey brought this action, in his lifetime, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages which he alleged he sustained by reason of the negligence of the defendant. He alleged in his complaint that the negligence was committed as follows:

"That said defendant's railway track for a distance of one mile west of said trestle, this being the direction from which said train was coming, is straight and level, and the view along said track is unobstructed; that plaintiff, being hard of hearing, was not aware of the approach of said train until he was struck by the same; that said engineer, seeing this plaintiff, blew the whistle on said engine before reaching the trestle and slowed up his train when just at west end of said trestle, then deliberately started up his train and run this plaintiff down, the pilot on the engine striking him, the said plaintiff, knocking him down; that, after he fell upon the track of said railway, the defendant's engineer stopped the engine after the pilot had passed over plaintiff and just when the wheels struck him, backed the train and he was picked up, bruised, shocked and bleeding."

The defendant answered, and specifically denied the foregoing allegations, and alleged that his injury was caused by his contributory negligence.

After hearing the evidence, the instructions of the court and argument of counsel, the jury returned a verdict for the plaintiff for $ 583.33 1-3. The defendant appealed.

The contention of the appellant is, that there was no evidence to sustain the verdict of the jury.

Kinsey was partially deaf. His hearing was very defective, and he could not see far, he being about 85 years old. There was a trestle near Alma, which formed a part of appellant's railroad.

Levi Farris, a witness for appellee, testified in part as follows:

"Q. You saw him hurt? A. Yes, sir. Q. Where were you when the train struck him? A. I was north of the trestle about a quarter of a mile. Q. Now, just tell the jury in your own way what attracted your attention, etc. A. Well, the whistle attracted my attention. I looked and saw the train coming and saw an old gentleman with a walking stick walking along the railroad, and I looked for him to get off, but he just kept walking ahead, and the train ran on and slowed up, and I kept waiting to see him to get "off and would look at the train and then at him. I knew that they were whistling at him. And then it kept slowing up until I thought it was about stopped just before it entered the trestle, and I looked then and saw where the old gentleman was, and he was behind a tree from me, and the train kept moving up slowly, and the next thing I seen the old man went headlong, and the train struck him. Q. How far was that train from the old man when it whistled? A. I can't say. Q. About how far? A. It must have been...