St. Louis & San Francisco Railroad Company v. Champion

• Decision Date: 19 May 1913
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CHAMPION
• Court: Arkansas Supreme Court

157 S.W. 408

108 Ark. 326

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CHAMPION

Supreme Court of Arkansas

May 19, 1913

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge affirmed.

STATEMENT BY THE COURT.

These suits were instituted by the appellee--one in his own right and the other, as administrator of the estate of Charles Champion--to recover damages for the loss by appellee of the services of his minor child, and for the benefit of the estate of the child. The causes were consolidated and tried by a jury, that returned a verdict in favor of the appellee in his own right, in the sum of one thousand dollars ($ 1,000), and for the benefit of the estate, in the sum of two hundred dollars ($ 200).

The negligence set up in the complaints was the same, and was to the effect that the appellant, while moving its cars and locomotives on a street in Fayetteville, negligently permitted one of its cars to run over Charles Champion causing his death. The complaint alleged that Charles Champion, at the time, was a pedestrian at the street crossing, and that appellant permitted its cars to approach the public crossing, without having a locomotive attached or coupled to them, so as to govern and control the momentum of the cars; that it failed to cause a whistle to be sounded or the bell to be rung before the cars reached the crossing; that it neglected to keep a constant lookout for persons on its tracks while the cars were approaching the crossing; that if the lookout had been kept, the peril of Charles Champion would have been discovered in time to have prevented his death, by the exercise of ordinary care on the part of appellant; that after Charles Champion had been knocked down by the car, and before he had been so injured as to cause his death, and while he was under the car, the appellant, knowing that he was under the cars and knowing that he would be killed if the speed of the cars was not stopped or arrested, negligently failed to exercise ordinary care to reduce the speed of the cars or stop the same, thereby causing the death of Charles Champion.

The complaint for the benefit of the estate alleged that Charles Champion, after being run over and injured, suffered greatly for about thirty minutes. The complaint for the benefit of the appellee in his own right, alleged that the services of his child, who was six years of age at the time of his death, were of the value of ten dollars per month to appellee.

The facts are substantially as follows:

The main line track of appellant, in the city of Fayetteville, runs north and south. Dickson street runs east and west. Appellee had his confectionery store close to the appellant's main line track and west of the same, on the north side of Dickson street. Appellant had three or four side tracks east of its main line track and east of the depot. Two of the tracks were laid in West street, that runs north and south and across Dickson street. Dickson street is the main thoroughfare from the depot to the business part of the town. Fayetteville has a population of five or six thousand. The switch tracks crossing Dickson street run parallel to the main line track. The appellee's six-year-old son and companion, a somewhat larger boy, were running across the track, when the larger boy ran against the son of appellee and knocked him down on the track. The two little boys, at the time, were going in opposite directions. Two cars coupled together were going south down West street and were at the time crossing Dickson street. There was no engine attached to the cars. The cars were running with about enough speed to put them over the street. They were almost coming to a stop when they ran over the appellee's son and killed him. The cars were being "kicked" across the street and were only given barely enough force to start them moving. They were moving very slowly--three or four miles an hour. There was no brakeman on the top of the cars. The cars had been separated from the engine. If the engine had been attached, the cars would have stopped in a short distance. They were not making a flying switch, just dropping the cars, which was drawing the pin and letting the cars roll for the purpose of shifting the cars from one track to the other. The car was some three or five feet from the boy when he fell. The first trucks passed over him without killing him. He scrambled to his hands and knees after the first trucks passed over him and the rear trucks struck him and cut him through, about the point of the shoulders. He died instantly. At the time the wheel ran over him, he was about ten feet from the sidewalk, south of it. It was the hind trucks of the first car that passed over his body. The death of appellee's son was caused on the 18th day of May, 1912.

Judgment affirmed.

W. F. Evans and B. R. Davidson, for appellant.

1. Where two boys left the sidewalk of a street and attempted to cross a railroad track by running around in front of a moving car, and, when in the middle of the track and in front of and in immediate proximity to the car, one boy knocks the other down and the latter is run over and killed, the proximate cause of the injury is the one boy's knocking the other down. 9 S.W. 793; 204 Pa.St. 568; 21 S.E. 571; 69 N.E. 653; 75 F. 811; 124 F. 113; 144 F. 605; 94 U.S. 469-475; 86 Ark. 289; 91 Ark. 260.

2. In view of the undisputed evidence that the boys knew that the car was moving across the street and attempted to run around in front of it, it was error to submit to the jury the question of negligence in failing to give signals for the crossing. 63 Ark. 177; 33 S.W. 396; 56 S.W. 1; 37 S.W. 119; 79 Pa. 873; 110 Am. St. Rep. 29; 56 So. 790; 146 S.W. 790.

3. The failure to keep a lookout was not the proximate cause of the injury. The boys ran so suddenly before the moving car that a lookout could avail nothing, and any failure to keep a lookout could not be the proximate cause of the injury. 84 S.W. 1049; Fed. Cases, No. 13358, 4 Hughes, 157; 50 S.W. 227.

4. Where the facts are undisputed, the question of negligence is for the court. 86 Ark. 289.

5. The testimony did not warrant submitting to the jury the issue of negligence after discovered peril. 77 S.W. 272; 50 S.W. 227; 16 S.W. 125; 52 N.E. 1013.

6. The testimony did not warrant submitting the second cause of action to the jury. The boy was killed instantly. No suffering whatever was shown. The administrator could recover nothing except what the boy himself could have recovered for pain and suffering endured after the injury up to the time of his death, and the pain and suffering, if any, which he endured was contemporaneous with, and inseparable from, the death. 56 F. 248; 117 Mich. 332; 145 U.S. 335; 68 Ark. 4; 101 Ark. 327.

Sam R. Chew, for appellee.

1. Under the facts developed in evidence, appellant is liable, notwithstanding any negligence on the part of the deceased. Acts 1912, page 275; 78 Ark. 28; 80 Ark. 528.

Had the lookout been kept as the law requires, the car could have been stopped before it struck deceased. A slight effort would have stopped it. The facts bring the case within the principle of discovered peril announced in Railway v. Hill, 74 Ark. 482.

2. The court's instructions covered the questions of contributory negligence of the child, the negligence of the father, negligence of the appellant and the proximate cause of the injury, which were all the questions raised by the proof, and the jury's determination of them adverse to appellant, being supported by ample evidence, will not be disturbed.

3. The appellant was under the duty not only to keep a constant lookout for persons upon this street crossing but also to ring a bell or blow a whistle for a distance of eighty rods back and to continue it until the crossing was passed. Injury to the deceased was one of the naturally to be expected consequences that would result from appellant's negligence in failing to keep a lookout for persons and property. 69 Ark. 130. And such negligence was the proximate cause of the injury. 67 Ark. 47; 33 Ark. 350. See also 53 Ark. 201; 75 Ark. 133; 66 Ark. 363; 75 Ill. 96; 27 Fla. 157.

4. The proof shows that the boy lived some appreciable time after being knocked down before he was killed by the rear trucks of the car. The verdict in favor of the administrator is not excessive. 78 Ark. 100; 39 Ark. 491.

OPINION

WOOD, J.

The appellant contends that the proximate cause of the death of Charles Champion was the fact of his being knocked down on the track by his companion running into him, when he was in front of the moving car. On this question, the court instructed the jury, at the instance of appellant, as follows:

"If you find that a child ran into the deceased child and knocked him down on the track, and, without the intervention of this act, that the result would not have followed; and you further find that men of ordinary care and prudence would not, in switching, anticipate such an occurrence, then the act of the boy knocking him down would be the proximate cause."

The instruction, given at the instance of appellant, was certainly as favorable to it as it could expect, and it has no right to complain. For under the lookout statute of May 26, 1911, enacted before the injury herein complained of, no matter what may have caused the unfortunate predicament of young Champion, if the employees of the appellant in charge of its train, by keeping the lookout, could have discovered his peril in time to have prevented his injury, by the exercise of ordinary care, then appellant is liable. See Acts of Arkansas, 1911, page 275; Railway v. Lindley, 151 S.W. 246; St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S.W. 510.

The child could not have been in a more perilous position, by...