St. Louis-San Francisco Railway Co. v. Sheppard

• Decision Date: 11 October 1937
• Docket Number: 4-4737
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY ET AL. v. SHEPPARD
• Court: Arkansas Supreme Court

109 S.W.2d 109

194 Ark. 619

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY ET AL. v. SHEPPARD

4-4737

Supreme Court of Arkansas

October 11, 1937

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.

Judgment reversed cause remanded.

J. W Jamison and Warner & Warner, for appellant.

Partain & Agee, for appellee.

OPINION

HUMPHREYS, J.

This suit was brought by appellee, as administratrix of the estate of George Sheppard, deceased, in the circuit court of Crawford county against appellant, to recover damages resulting from the death of George Sheppard, her husband while crawling under a refrigerator car which had been stored or parked by appellant on appellant's switch or service track in its switch yard adjacent to an oil mill located on the west side of the switch track, in Fort Smith, Arkansas.

The allegation of negligence was that appellant had kicked three of its freight cars out of its train on the main line onto said switch track for the purpose of connecting them with the two refrigerator cars without maintaining any lookout or any means of stopping or controlling the movement of the freight cars or for giving any signal or warning to anyone who might be upon or near the switch track. In other words, the suit and right to recover for the death of George Sheppard was predicated upon appellant's failure to comply with the lookout statute in the movement of these freight cars, which statute is as follows:

"It shall be the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed." Crawford & Moses' Digest, § 8568.

Under this statute, in order for appellee to have recovered, she must have proved facts and circumstances from which the jury might have inferred that her husband had been killed on account of the movement of the freight cars and that the danger might have been discovered and the injury and death avoided if a lookout had been kept. The burden was upon her to make such proof in order to recover.

The cause was submitted to a jury upon the sole question of whether appellant or its employees failed to comply with the lookout statute set out above, resulting in a verdict and judgment in favor of appellee for $ 3,000, from which is this appeal.

The question for determination here is whether there is any substantial evidence to sustain the verdict.

The evidence shows that appellant had placed two refrigerator cars several days before the death of George Sheppard on the switch track located on the east side of and near the oil mill opposite a basement window in the wall of the building in which George Sheppard worked and had worked for a number...