St. Louis, M. & S. E. R. Co. v. Garner

• Decision Date: 14 October 1905
• Parties: ST. LOUIS, M. & S. E. R. CO. v. GARNER.
• Court: Arkansas Supreme Court

Page 550

89 S.W. 550

ST. LOUIS, M. & S. E. R. CO. v. GARNER.

Supreme Court of Arkansas.

October 14, 1905.

Appeal from Circuit Court, Randolph County; R. P. Mack, Special Judge.

Action by J. D. Garner against the St. Louis, Memphis & Southeastern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

L. F. Parker and Orr & Luster, for appellant.

BATTLE, J.

"On the 25th day of September, 1902, one Joseph Garner, a man about 22 years of age [we quote from appellant's brief] was at the depot at Biggers, a station in Randolph county, when one of defendant's engines, nearly out of water, was ready to make a quick run to a water tank about 20 miles north. Joseph tried to persuade Bud Smith and John Burries to ride the engine with him, but they both declined, and warned Garner that it was dangerous and he might get hurt. Garner replied: `By God, I am going to ride it anyway,' and he asked Perkins, the brakeman, if he could ride, and Perkins told him: `No, you might get hurt; we are in a hurry.' Garner expressed himself as `not giving a damn if he did; he was going to ride it,' and when the engine pulled out Garner stepped up on the step at the rear end of the tender and held to the bar near the top. The engine moved off at a rapid rate, and had gone about half a mile, when Garner fell from his position, and in falling struck his head on some hard substance, from the effect of which injuries he died the next day without ever recovering conciousness. J. D. Garner, the father of Joseph, brought this suit to recover damages which he had sustained on account of the death of his son, alleging that `the injuries received by the said Garner, of which he died, were due to the negligence of said defendant, its agents and employés, in running the train at such an unusual and dangerous rate of speed that by reason of it Garner was thrown to the ground with great violence and received the injuries of which he died; and that thereby the defendant became liable in damages to plaintiff in the sum of $1,999.'

"Defendant in its answer denied specifically the allegations in the complaint, and stated that Joseph Garner was a trespasser on defendant's engine; that he had been warned of the danger and assumed the risk of the rapid speed of the train, and that his own negligent acts contributed to his injuries; that plaintiff was not the proper party to bring the suit; that there was an administrator of the estate; that plaintiff was not damaged, was...