St. Louis-San Francisco Ry. Co. v. Crick

• Decision Date: 06 October 1930
• Docket Number: No. 147.,147.
• Citation: 182 Ark. 312,32 S.W.2d 815
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. CRICK.
• Court: Arkansas Supreme Court

32 S.W.2d 815

182 Ark. 312

ST. LOUIS-SAN FRANCISCO RY. CO. v. CRICK.

No. 147.

Supreme Court of Arkansas.

October 6, 1930.

Rehearing Denied November 3, 1930.

Appeal from Circuit Court, Poinsett County; G. E. Keck, Judge.

Action by Maggie Crick, administratrix of the estate of Thomas Crick, deceased, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

This appeal is prosecuted from a judgment for damages for the wrongful death of administratrix's decedent, Thomas Crick, alleged to have been caused by the negligence of the appellant in failing to keep a lookout and avoid injury to decedent, a trespasser on the track.

Thomas Crick, an unmarried man 24 years of age, lived in Marked Tree with his parents but worked at Trumann, 12 miles north of Marked Tree. He came home Saturday afternoons after work and returned Sunday afternoons to resume work Monday morning. He was last seen alive with his mother on the highway bridge Sunday afternoon May 6, 1928. The complaint alleged that on that Sunday night he started to walk from Marked Tree back to Trumann, sat down on the track of defendant near milepost 444-19, and was struck and killed by the fast freight train of defendant operating on the track. That the defendant's engineer and fireman saw, or by the exercise of the statutory duty to keep a lookout could have seen, the deceased on the side of the track and could have stopped the train without striking him, etc.

The roadbed from Marked Tree to Trumann is straight and runs through swampy ground and the track is built up into a high dump. The next morning about 7 o'clock the body was found lying on the east side of the track of appellant, outside the rails with the head near the end of the ties. Above the ear on the left side of the head was a deep wound — the skull fractured — in which a man could lay his two fingers, and the left shoulder was crushed and broken. About the wound on his head and shoulder was black oil of the kind used by the appellant in the operation of its engines. The man had apparently been dead five or six hours. The track ran north and south there, and the body lay in an angular position to the track, the head some two or three feet from the ends of the ties and the legs and feet pointing to the southeast. There was blood on the ground under the head. There was no indication of a disturbance of the chat on the right of way or that the body had been dragged, and no blood or hair or fragments of clothing was found on the ties or rails of the track.

The time of the passing of through trains on the track on the night before the finding of the body was shown, and also that flood conditions prevailed in the vicinity and the trains were running under "slow orders" from 15 to 25 miles per hour and that the headlights of the trains were powerful, throwing beams of light for 1,500 feet in front of the engine that would have enabled the operatives to have seen a man on or near the track at that distance or on the cross-ties, and that the train could have been stopped within 500 feet.

The deceased was earning $125 per month at the time of his death, and the amount of his contributions to his father and mother was shown to be from $25 to $40 per month; the ages and expectancies of his mother and father were also shown.

The appellant introduced no testimony and moved for a directed verdict on account of lack of evidence.

The court instructed the jury, and from the judgment against it this appeal is prosecuted.

E. T. Miller, of St. Louis, Mo., and E. L. Westbrooke, Jr., and E. L. Westbrooke, both of Jonesboro, for appellant.

C. T. Carpenter, of Marked Tree, for appellee.

KIRBY, J. (after stating the facts.)

Two errors are assigned for reversal of the judgment, first, for want of proper parties, it being insisted that the mother of the deceased, appellee, was not properly...