St. Louis Southwestern Co. v. Cochran

• Citation: 91 S.W. 747,77 Ark. 398
• Parties: ST. LOUIS SOUTHWESTERN COMPANY v. COCHRAN
• Decision Date: 06 January 1906
• Court: Supreme Court of Arkansas

91 S.W. 747

77 Ark. 398

ST. LOUIS SOUTHWESTERN COMPANY v. COCHRAN

Supreme Court of Arkansas

January 6, 1906

Appeal from Lafayette Circuit Court; CHARLES W. SMITH, Judge reversed.

Action by W. J. Cochran against the St. Louis Southwestern Railway Company for damages resulting from the death of his son caused by alleged negligence of the defendant in the operation of its train. The plaintiff recovered judgment, and defendant appealed.

Judgment reversed and cause remanded.

S. H West and Gaughan & Sifford, for appellant.

In an action by the father to recover for the death of a child, contributory negligence of the father bars such recovery. 68 Ark. 1; 72 Ark. 1. The lookout statute does not make the company liable for injury to trespassers who are guilty of contributory negligence, notwithstanding the failure to keep the lookout. 62 Ark. 235. The last clause of instruction 5 is erroneous in that it makes the defendant liable for not keeping a lookout, regardless of the contributory negligence of the plaintiff. It could not be cured by other instructions given. 65 Ark. 68; 71 Ark. 451.

H. P. Smead and H. S. Powell, for appellee.

Notwithstanding the prior negligence of plaintiff, if the defendant had discovered the injured party in time to have avoided injuring him by the use of ordinary care, and failed to exercise such care, the defendant is liable. 62 Ark. 170. It was the duty of defendant to use ordinary care to discover persons on the track, and failure to do so was negligence. 62 Ark. 164; act April 8, 1891.

OPINION

MCCULLOCH, J.

Appellee, W. J. Cochran, sued appellant, St. Louis Southwestern Railway Company, for damages resulting to him as parent from the death of his child 22 months of age, alleged to have been negligently run over and killed by appellant in the operation of its train.

Appellant answered, denying the allegations of negligence, and alleged that the plaintiff was guilty of negligence in permitting the child to go upon the railroad track unattended. The court, over the objection of the defendant, gave the following, among other, instructions upon request of the plaintiff, viz.:

"2. The jury are instructed that if they believe from the evidence that the plaintiff, the father of the child, was in fault, and that the child, while wrongfully on defendant's track, was killed by defendant's train, but that the defendant's agents were aware, or by the use of ordinary diligence might have been aware, of the fact that the child was on the track in time to avoid injuring him, by reasonable diligence, the failure to use such diligence alone must be considered the proximate cause of the injury.

"5. The jury are instructed that it was the duty of the defendant, through its engineer and fireman, to keep a constant lookout for persons on the track. It is not necessary, under the circumstances in proof in this case, that both the engineer and fireman, from their respective positions on the engine, should have kept such lookout; but to meet this requirement it is necessary that either the fireman or engineer keep such constant lookout for persons on its track. And if you believe from all the facts and circumstances detailed in evidence that such constant lookout was not kept by either the fireman or engineer at the time and place of the injury complained of, and that by reason of such neglect to keep said lookout deceased, John Franklin Cochran, was killed as alleged in plaintiff's complaint, your verdict will be for the plaintiff."

The defendant asked instructions to the effect that if plaintiff was guilty of contributory negligence in permitting the child to go upon the track unattended, he could not recover unless the servants of defendant failed to exercise care to avoid the injury after they discovered the perilous position of the child; but the court modified them by adding language permitting the jury to find for the plaintiff, notwithstanding his contributory negligence, if by use of ordinary care the servants of the plaintiff could have discovered the perilous position of the child in time to have avoided the injury.

A child of tender years cannot be guilty of negligence, nor can the...