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

• Decision Date: 04 November 1907
• Citation: 105 S.W. 263
• Parties: ST. LOUIS & S. F. RY. CO. v. FERRELL.
• Court: Arkansas Supreme Court

Page 263

105 S.W. 263

ST. LOUIS & S. F. RY. CO. v. FERRELL.

Supreme Court of Arkansas.

November 4, 1907.

Appeal from Circuit Court, Mississippi County; Frank Smith, Judge.

Action for death by Rowena Ferrell, administratrix, against the St. Louis & San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Rowena Ferrell, as administratrix of the estate of her deceased husband, Lou. M. Ferrell, brought this action against the St. Louis & San Francisco Railway Company for damages for the alleged negligent killing of said Ferrell by a train of the appellant company, and recovered a verdict of $4,000 for the benefit of his widow and children. Judgment was rendered thereon, and the defendant company has appealed.

The case is refreshingly free from conflicting evidence. The testimony as to the death of Mr. Ferrell comes from disinterested witnesses, who were his companions at the time. Taking that testimony most strongly in favor of the plaintiff, the following facts appear: Osceola is divided into two sections, known as "Old Town" and "New Town." Hale avenue connects the two sections. The two leading hotels of the town are situated on Hale avenue, one on the east and one on the west of the railroad tracks, which cross Hale avenue at right angles. There were two tracks leading from Hale avenue to the depot, the main track, and on the west thereof a passing track, and further south a house or commercial track joined the main track on the east side and ran on south of the station. Where this accident occurred there were the three tracks, which will be referred to as the "main line," "west track," and "east track." The main line was raised about 12 inches above the east and west tracks, and, in order to do this work, grade stakes were driven 100 feet apart on each side of the main track. They were left there for the purpose of bringing the level of the main line to the grade as indicated by these stakes, and the work was still being done for that purpose by the section hands, not by the regular construction gang, which had left there before this time. It was essential that the stakes remain until the track had become settled to the required elevation, in order that the section hands might properly do the work; and they were reset when it became necessary, and when they were knocked down they were replaced. These stakes were about 1 inch thick, about 2 inches wide, and at this point about 12 inches above the level of the ground, reaching to the level of the top rail, and were set about 12 inches from the ends of the ties. In the spring of 1904 the station at Osceola was moved to a point in a field about 1,500 feet south of Hale avenue, and on the east side of the main line. From that time until the time of the death of Mr. Ferrell, in December, the railroad tracks from Hale avenue to the depot had been constantly used by the public, particularly the traveling public, especially those stopping at the hotels. This was due to several reasons. No good street or walk way had been built to the depot, and the railroad tracks were a little raised above the surrounding country, and were covered with sand, making a much better walk than any other route. It may be assumed that the use of these tracks from Hale avenue to the depot was so common and well known to the railroad company that the public was impliedly licensed to use that route at the time that Mr. Ferrell and his companion were using it. Messrs. Ferrell, Bell, Merrell, Noonan, and Speck were attending court at Osceola, and desired to go to their homes south of there, and went to take the train which passed through Osceola going south about 7 o'clock the night of December 10, 1904. They started from their hotel to walk to the station by way of the tracks. Messrs. Merrell, Speck, and Noonan were in advance of the main line, and Messrs. Bell and Ferrell were walking together, on the west track. These gentlemen were walking leisurely and engaged in conversation. They thought they were in ample time for their train. When they were about a third of the way from Hale avenue to the station, they heard a train coming, which they supposed to be the passenger, but which proved to be a through freight, which did not stop at Osceola. It was going at a speed variously estimated from 25 to 40 miles an hour. In order to catch their train, they commenced running, hoping to reach the station before the train would leave there. The three gentlemen in front turned from the main track to the west track, and ran for some distance until the train passed them. None of them saw the accident. Messrs. Bell and Ferrell ran for some distance along the west track where they had been walking. Mr....