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

• Decision Date: 05 February 1912
• Citation: 144 S.W. 917,102 Ark. 417
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SCOTT
• Court: Arkansas Supreme Court

144 S.W. 917

102 Ark. 417

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

Supreme Court of Arkansas

February 5, 1912

Appeal from Conway Circuit Court; Hugh Basham, Judge; affirmed.

Judgment affirmed.

W. E Hemingway, Lovick P. Miles, and Thomas B. Pryor, for appellants.

1. A locomotive engineer has a right to presume that a person on the track will leave the track in time for an approaching train to pass. 77 Ark. 405; 90 Ark. 378-286.

2. All persons are presumed to be in possession of their faculties and the engineer had the right to presume that, when he sounded the danger signals, deceased and his companions would leave the track. The court therefore erred in refusing to give instructions 4 and 12, requested by appellant. 46 Ark 523; 2 White, Personal Injuries on Railroads, §§ 1085, 1890. The modification, "until the acts and conduct of the deceased indicated the contrary," inserted by the court, was erroneous in assuming as true a fact that was in issue. 71 Ark. 38; 76 Ark. 468.

3. The verdict is clearly excessive.

Bratton & Fraser and Sellers & Sellers, for appellee.

1. It is for the jury to determine from all the facts and circumstances in proof whether the engineer had good reason to believe that the injured person was insensible of his danger. An engineer can not shield himself behind the presumption that a person seen on the track will leave it in time to escape injury, after his appearance gives the engineer good reason to believe that he is insensible to the danger. 99 Ark. 422.

2. There is no error in the fourth and twelfth instructions as modified. The objection that the modification assumes as true a fact in issue is not well founded; but if it were so, appellant, having made no specific objection thereto in the lower court, will not be permitted to raise the objection here. 76 Ark. 348; Id. 468, 471; 66 Ark. 46; 65 Ark. 255.

3. The verdict is not excessive. 59 Ark. 224; 84 Ark. 247.

OPINION

MCCULLOCH, C. J.

Plaintiff 's intestate, Homer Scott, was a deaf and dumb boy, fifteen years of age, and was run over and killed by one of defendant's trains while he and two deaf-mute companions, about the same age, were walking the track near McAlmont, a station on the road six or seven miles north of Little Rock. The plaintiff is the father of Homer Scott, and sues as administrator to recover damages to the estate on account of the pain and suffering endured by deceased, and also damages to himself on account of the loss of services of deceased to which he was entitled as parent. A trial resulted in a verdict for the plaintiff, assessing damages at $ 1,000 on each branch of the case, and defendant appealed.

The three boys were students at the Deaf-Mute Institute near the city of Little Rock, and on the afternoon of the accident, they crossed the river on the railroad bridge and walked northward on the track until they got nearly to McAlmont, where the accident occurred. The two survivors testified through an interpreter, and gave an account of the way the accident occurred. According to their testimony, they walked along the track, and once or twice got off to avoid approaching trains coming from the north. At the time of the accident they were walking along the track, one of the boys walking on the ends of the ties on the outside of the rail; Homer Scott was walking the right-hand rail, with his hand resting on the shoulder of the other boy; and the third one was walking the ends of the ties on the other side of the track. The testimony tends to show that the boys were conversing by signs as they walked along. A passenger train approached from the south, and the boys were seen both by the fireman and engineer for perhaps something more than a quarter of a mile. The whistle was sounded for the crossing several hundred yards distant, and the fireman continued to ring the bell. Another witness, who was near the track at the time, stated that alarm whistles were commenced about three hundred yards from where the boy was struck. Neither of them gave any indication of having heard the alarm, and when the engine got within a short distance of them, the emergency brake was applied, but too late to prevent striking this boy. The other two, who were walking on the ends of the ties, stepped aside in time to escape injury. The engineer testified that he saw the boys for a considerable distance, but didn't know there was anything the matter with them nor that they were unconscious of the approach of the train, and that he thought they would get off before the engine reached them. He testified that, as soon as he realized that they were not going to get off, he applied the emergency brake and did all he could to stop the engine.

The action is based upon alleged negligence of the engineer in failing to exercise care to avoid striking deceased after discovering his peril. It is insisted that the evidence is not sufficient to warrant the finding that the engineer discovered, in time to avoid the injury, the fact that the boys were unconscious of the approaching train. The testimony does not free the question from doubt, but we are of the opinion that, under the facts of the case, it was peculiarly within the province of the jury to determine whether the engineer was guilty of negligence in this respect. It is conceded that he saw the boys at least a quarter of a mile, walking along the track, and that alarms both by bell and whistle, were given about that time. The boys...