St. Louis-San Francisco Railway Company v. Vernon

• Decision Date: 04 February 1924
• Docket Number: 146
• Citation: 258 S.W. 126,162 Ark. 226
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. VERNON
• Court: Arkansas Supreme Court

258 S.W. 126

162 Ark. 226

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. VERNON

No. 146

Supreme Court of Arkansas

February 4, 1924

Appeal from Washington Circuit Court; W. A. Dickson, Judge reversed.

Judgment reversed and cause remanded.

W F. Evans and Warner, Hardin & Warner, for appellant.

1. The court erred in submitting to the jury the question of failure to maintain a lookout. Where there is no evidence tending to prove a failure to maintain such lookout, it is reversible error to submit the question to the jury. 151 Ark. 34; 111 Ark. 134, 139. The testimony of the engineer and fireman was consistent and reasonable, and there was no evidence that either directly or inferentially contradicted them. 101 Ark 532; 80 Ark. 396; 89 Ark. 574.

2. The court erred in quoting literally the lookout statute, in instructing the jury, without explaining its application. 149 Ark. 270, 284. There was an issue here as to the interpretation to be placed upon the statute, in the fact that, while it imposes, by its literal terms, an absolute duty to keep a lookout, this court has held that such duty is limited to the exercise of ordinary care to maintain a careful lookout. 136 Ark. 246, 256. Instructions requested correctly limited the duty of keeping a lookout in this respect, and amounted to a specific objection to the instruction given. 153 Ark. 454, 462.

3. It is error to assume facts, in instructing a jury, the existence of which is not proved. 71 Ark. 518; 152 Ark. 90; 87 Ark. 471.

4. It was error to submit, as an element of damage in this case, conscious pain and suffering on the part of the child, without proof of such suffering. 82 Ark. 499; 106 Ark. 177; 90 Ark. 278; 138 Ark. 175; 68 Ark. 1; 158 Ark. 271.

5. If, as the undisputed evidence shows, the defendant was not negligent in failing to keep a constant lookout, it was not negligent in failing to discover the child in a dangerous position near the track; and, if its presence could not and would not have been discovered in time to avert injuring it, by keeping a lookout, there can be no right of recovery. 113 Ark. 353, 358; 129 Ark. 80.

6. The duty with reference to keeping a lookout is not imposed on all members of a train crew, but may be discharged by a single person, if he is in a position to do so as effectively as any other member of the train crew, and the jury should have been so instructed. 111 Ark. 309, 313, cases cited; 82 Ark. 503; 96 Ark. 213; 131 Ark. 150.

Nance & Seamster, for appellee.

1. Unlike Davis v. Scott, 151 Ark. 34, relied on by appellant, the accident in this case occurred at a public crossing, which raised a presumption of negligence against the defendant, and the burden of proof was on it to show by a preponderance of the evidence that a constant lookout was kept. C. & M. Digest, § 8568; 74 Ark. 606; 107 Ark. 431. If the front brakeman was on his seat and looking ahead, the jury would have the right to infer from the fact that he did not see the child that he was not keeping a constant lookout. 136 Ark. 246, 256. Merely looking ahead does not meet the requirements of the statute. It contemplates an efficient lookout. 78 Ark. 251; 63 Ark. 184; 62 Ark. 186; 57 Ark. 194.

2. The court was warranted by the evidence in giving the instruction submitting the question of conscious pain. 142 Ark. 593; 151 Ark. 549.

OPINION

HUMPHREYS, J.

As the judgment in this cause must be reversed and remanded for a new trial on account of admission of incompetent testimony, only such matters will be discussed in the opinion as may be necessary for the guidance of the parties and court in a retrial of the case. The action was commenced in the circuit court of Washington County by appellee against appellant to recover damages in the sum of $ 2,999.99 to the estate and next of kin of the deceased, Helen Vernon, a child two years of age, for fatally injuring her, through the alleged negligence of the employees of appellant in failing to give the statutory signals as the train operated by them approached the wagon-road crossing, where the child was injured, and by failing to keep a constant lookout required by 8568 of Crawford & Moses' Digest. The child was struck by a freight train coming from the north, and fatally injured, at a public road crossing about three miles south of Springdale. The parents of the child resided about one-eighth of a mile east of the road crossing. Without their knowledge or consent she wandered down the road to the place of the tragedy. After striking the child, the train was stopped, and the employees, except the fireman, who remained in the engine, went to the child. They removed her to a spring about seventy-five yards from the track, where the conductor washed her face. He called to a man who was passing, and was informed by him that the little girl was the daughter of the Vernons. He went to their home, and told Mrs. Vernon what had happened to her child. Mrs. Vernon told her husband, and they went with the conductor to the child. Mrs. Vernon testified, over the objections and exceptions of appellant, that, when they reached the child, the engineer said to her, "Lady, I should have stopped on the other side, but I put on the brakes and they didn't hold." This testimony was not admissible.

The proper foundation was not laid in order to admit it for contradictory purposes.

The engineer's employment did not carry with it authority to make declarations or admissions, subsequent to the injury, relative to the manner in which it happened, which would be binding upon the company. Ry. Co. v. Sweet, 57 Ark. 287, 21 S.W. 587; Stecher Cooperage Co. v. Steadman, 78 Ark. 381, 94 S.W. 41; Caldwell v. Nichol, 97 Ark. 420, 134 S.W. 622; River, R. & H. Const. Co. v. Goodwin, 105 Ark. 247, 151 S.W. 267.

The statement was a narrative of a past occurrence and not a part of the res gestae. St. Louis, I. M. & S. Ry. Co. v. Kelley, 61 Ark. 52, 31 S.W. 884; St. Louis, I. M. & S. Ry. Co. v. Pape, 100 Ark. 269, 140 S.W. 265; Webb v. Kansas City So. R. Co., 137 Ark. 107, 208 S.W. 301.

Appellant also contends that the court erred in submitting to the jury the question of its negligence for failure to keep a constant lookout. Its contention is based upon the claim that the undisputed evidence shows that a constant lookout was kept by some one of the employees of appellant as the train approached the public road crossing. We do not so interpret the evidence. D. C. Blakelee, the engineer, admitted that his view of the crossing was cut off thirty rods north of it, on account of the curve in the track. A. M. Bean, the fireman testified that, after passing the Stockdale farm, which was about one-fourth of a mile north of the road crossing where the child was struck, he...