St. Louis & S. F. Ry. Co. v. Townsend

• Decision Date: 15 June 1901
• Citation: 63 S.W. 994
• Parties: ST. LOUIS & S. F. RY. CO. v. TOWNSEND et al.
• Court: Arkansas Supreme Court

63 S.W. 994

ST. LOUIS & S. F. RY. CO. v. TOWNSEND et al.

Supreme Court of Arkansas.

June 15, 1901.

Appeal from circuit court, Sebastian county; Styles T. Rowe, Judge.

Action by Flora Townsend and others against the St. Louis & San Francisco Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed.

L. F. Parker and B. R. Davidson, for appellant. Winchester & Martin and Mechem & Bryant, for appellees.

BATTLE, J.

R. B. Townsend was killed by a train of the St. Louis & San Francisco Railway Company, while he was lying on its track. Flora Townsend, the widow of the deceased, for herself and as next friend of his and her children, brought this action against the railroad company to recover the damages suffered by them by reason of his death. In the trial that followed little evidence, if any, was adduced to prove that the railroad company discovered the deceased upon its track in time to avoid killing him. The plaintiffs, however, recovered a judgment against the defendant for $1,999, and the defendant appealed.

After the introduction of the testimony in the case the court instructed the jury that tried the issues in part as follows:

"The burden is on the defendant to show that a constant lookout was kept; yet where that is shown to have been done, and where it is also shown that the deceased has been guilty of contributory negligence, and the defendant used a proper degree of care, after becoming aware of the negligence on the part of the deceased, to have avoided the killing, then the burden is on the plaintiff to show when defendant's servants discovered the condition of deceased, or under what state of facts they did discover his condition as to being unable from intoxication or other causes to have gotten off the track."

The burden of proving the facts necessary to show that the deceased was killed on account of the negligence of the appellant, and the damages suffered by them, rested upon the appellees. When it was shown that he was killed by a train of appellant upon its track, the presumption was that his death was the result of the negligence of the railroad company. Railway Co. v. Blewitt, 65 Ark. 235, 45 S. W. 548. While this fact was proved, the effect of it was avoided by showing that the deceased was lying upon the track of the railroad at the time of his death. Railway Co. v. Leathers, 62 Ark. 235, 35 S. W. 216. He was thereby shown to have been instrumental in causing his own death, and that he would not have been killed if he had not been guilty of negligence. It was not incumbent upon the appellant to show that it did not discover his presence upon its track in time to avoid injuring him. By proving that the deceased was guilty of contributory negligence it established a sufficient defense to bar recovery by the appellees, unless other facts were shown. It was not necessary for it to prove additional facts to exonerate itself from liability until the effect of the contributory negligence was overcome. This being true, it is clear that the burden was upon the appellees to show that the appellant discovered the deceased upon its track in time to avoid injuring him, and willfully and recklessly killed him, unless it was already shown by the evidence adduced by the appellant. Railway Co. v. Jordan, 65 Ark. 429, 436, 47 S. W. 115; Railroad Co. v. Hare (Tex. Civ. App.) 23 S. W. 42; Lee v. Iron Co., 102 Ala. 628, 15 South. 270.

In Railway Co. v. Pankhurst, 36 Ark. 371; Railway Co. v. Ledbetter, 45 Ark. 250; Railway Co. v. Haynes, 47 Ark. 497, 1 S. W. 774; Railway Co. v. Monday, 49 Ark. 257, 4 S. W. 782; Sibley v. Ratliffe, 50 Ark. 483, 8 S. W. 686; Railway Co. v. Taylor, 64 Ark. 364, 42 S. W. 831; and Electric Co. v. Nelson, 66 Ark. 494, 52 S. W. 7, — this court in effect held that a railroad company owes no duty to a trespasser on its track or trains, except the negative duty not to wantonly, recklessly, or willfully injure him after it or its employès discover his presence. In Railway Co. v. Freeman, 36 Ark. 46, it is said: "It is a plain principle of law that no railway company nor other person can be held liable for negligence when the plaintiff, by his own negligence, has contributed to the injury, unless it was a willful injury, or one resulting from the want of ordinary care on the part of the defendant to avert it, after the negligence of the plaintiff had been discovered." Such a failure to use ordinary care to avoid injuring the plaintiff after his situation has been discovered rises to the grade of wanton or reckless conduct, and renders...