St. Louis Southwestern Railway Co. v. Christian

• Decision Date: 28 April 1924
• Docket Number: 333
• Citation: 261 S.W. 297,164 Ark. 65
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY CO. v. CHRISTIAN
• Court: Arkansas Supreme Court

261 S.W. 297

164 Ark. 65

ST. LOUIS SOUTHWESTERN RAILWAY CO. v. CHRISTIAN

No. 333

Supreme Court of Arkansas

April 28, 1924

Appeal from Columbia Circuit Court; L. S. Britt, Judge; reversed.

Judgment reversed.

John R. Turney, Gaughan & Sifford and Elbert Godwin, for appellant.

1. An infant injured by coming in contact with a freight-car near the middle of a train rightfully occupying the track, cannot recover from the railroad company, where the undisputed evidence shows that the perilous position was not discovered by the train crew in time to have averted the injury, whether the place at which he came in contact with the train was on the private right-of-way of the railroad, a footpath on the right-of-way customarily used by the public, or a public highway. 117 Ark. 483; 101 Ark. 532; 57 Ark. 461; 90 Ark 281; 95 Ark. 190; 93 Ark. 24; 25 Ky. Law Rep. 1623, 78 S.W 439; 2 Thompson's Com. on Law of Negligence, § 1674.

2. A meandering footpath across a railroad right-of-way which has been used by the public for many years is not a "public highway, street, alley or crossing" within the meaning of Crawford & Moses' Digest, § 8560, making it unlawful for a train to remain standing on such a public crossing longer than ten minutes. 89 Ark. 103; 103 Ark. 226; 96 Ark. 638; 52 Tex. Civ. App. 575, 113 S.W. 611; 104 Mo 211, 16 W. 11; 106 Ark. 390.

3. The evidence conclusively repels the inference that appellant's train had remained standing on the pathway for more than ten minutes prior to appellee's injury.

4. If it be assumed that the train unlawfully blocked the pathway, in violation of the statute, for more than ten minutes, still its alleged negligence in failing to give warning signals could not have been the proximate cause of the injury, since the appellee, because of his age, could not have appreciated the signals if they had been given. 63 Ark. 177; 84 Ark. 270; 106 Ark. 390; 130 Ark. 583; 132 Ark. 431; 63 Ark. 177; 56 Ark. 387.

A. D. Pope, M. P. Huddleston and R. P. Taylor, for appellee.

1. On the theory of liability on the part of the railroad company under Crawford & Moses' Digest, § 8560, counsel draw a distinction between that section and § 8568a, on which appellant relies, and say that the crossing at which the injury occurred comes within the definition of an alley, such as is contemplated by § 8560. Permissive use is not restrictive of public right. 157 Ark. 449, 452; 78 Ark. 251, 260; 31 Ky. L. Rep. 825, 104 S.W. 258, 13 L. R. A. (N. S.) 1066. The crossing was maintained primarily, if not solely, for public use. Appellee had the right, because of the unlawful obstruction of Junction Street, to attempt crossing at the point of injury. 50 Mo. 461, 11 Am. Rep. 420, 12 Am. Neg. Cases, 198. And he had this right, and for the same reason, to attempt crossing at any point in the train, whether at a customary crossing point or elsewhere. 168 Mo.App. 160, 153 S.W. 66; 58 Kan. 424, 49 P. 599, 3 Am. Neg. Rep. 26; 84 G. A. 698, 11 S.E. 455; 16 A. L. R. 1054, note; 62 Ark. 156; 64 Ark. 364. Plaintiff is not chargeable with contributory negligence. He may rely on the negligent obstruction as causing his injury. 180 S.W. 792; 22 R. C. L. 994. If the statute be viewed as penal, the result is not altered. 93 Ark. 42, 45; 95 Ark. 218; 45 Ark. 387, 391; 132 Ark. 1, 7. But the statute is not penal. It has both a penal and a remedial aspect, and the latter controls in a civil suit to recover damages. 24 A. 831; 176 Ill. 489, 42 L. R. A. 804; 123 Ark. 226, 230; 93 Ark. 42, 45. The jury's finding establishes negligence per se on the part of the defendant, and that negligence was the proximate cause of the injury. 146 Ark. 448, 455; 180 S.W. 792; 84 Ga. 698, 11 S.E. 455. The proximate cause in this case relates back to the obstruction. This as a matter of law, assuming the correctness of appellant's theory that the failure to warn could not have been the proximate cause of the injury because of the plaintiff's tender years and consequent inability to appreciate the warning. 146 Ark. 448; 99 Miss. 519, 55 So. 287.

2. The statutory presumption makes the railroad company prima facie liable for damages caused by a running train. C. & M. Digest, § 8562. This presumption places on the defendant the burden of disproving every element of negligence, whether specifically alleged or not, which may reasonably have caused the injury. And such presumption uniformly favors children of tender years. 57 Ark. 136; 80 Ark. 19, 21; 180 S.W. 490; 83 Ark. 217, 221; 59 Ark. 140; 179 U.S. 658; 89 Ark. 574, 577; 23 A. L. R. 1214, note; 49 Ark. 257, 264; 62 Ark. 245, 253; 52 Ark. 162. The presumption favors a bare licensee, if he be a minor of tender years.

MCCULLOCH3, C. J. HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

Howard Christian, a small boy about five years of age, was run over by a freight train of appellant's being operated in the city of Paragould. The boy's leg was mashed off, and he suffered pain. This is an action instituted by the guardian of the boy against the railway company to recover damages. There was a verdict against the company, awarding damages to appellee, and an appeal has been prosecuted.

There are many assignments of error, among which is one that, according to the undisputed evidence, there is no liability, and this is the only one which we find it necessary to discuss.

Appellant's line of railroad runs through the city of Paragould slightly northeast and southwest, crossing the streets and alleys obliquely. Some of the streets and alleys intersected by the railroad are open and some are closed. Vine Street, near which the injury to appellee occurred, runs east and west, and is closed. The plats in evidence show that the street is laid out on both sides of the railroad, but there is no crossing there. Junction Street, the next one on the north of Vine, is open, and also Park Street, two blocks south of Vine, is open. Second Street, which runs north and south on the west side of the railroad crossing, intersects Vine Street at the edge of the railroad right-of-way. East of the railroad right-of-way Vine Street is also obstructed by a manufacturing plant, shown on the plat as being nearly across the street adjoining the right-of-way. Just north of the north line of Vine Street there is a trestle spanning a deep ditch. There are two ditches parallel with the main track, north and south and on the west side of the track, which drain into the large ditch spanned by the trestle. Across the ditch north of the trestle there is a wooden stringer, ten by fifteen inches in size, used as a footlog, or walkway. The footlog was placed there by the railroad company, and the first one placed there was replaced by a larger one. At the end of the footlog there is a path which leads across the main line of appellant's track, and also across the Missouri Pacific track. The footlog and the path which connects have, according to the evidence, been used by the public for many years, without protest or objection. Appellee was run over at a point on the track very near where this pathway crosses the track. He was run over by a freight train containing fifty-eight cars. The train came into the city from the south, and slowed down preparatory to stopping at the water-column for water. The train was 2,500 feet in length, and reached south from the water-column to a point considerably south of the place where appellee was struck at the footpath. In other words, appellee was struck by one of the cars in the train, about the fifteenth from the engine. According to the evidence, the train moved into the city at a slow rate of speed, and the engine stopped at the tank. In coming to a stop the engineer failed to accurately spot the engine so as to stop it at the water-column, and it was necessary to back up a little.

There is no witness who saw the boy when he was run over by the train, and it is to some extent a matter of speculation as to how it occurred, but it is inferable that the boy was either attempting to crawl under the train and thus pass over the track, or that he was hanging on to the lower rung of the ladder, attempting to ride the train. The only witnesses who saw the boy prior to the injury were the engineer and fireman, who testified that, as they passed up, they saw three boys on the side of the ditch near the footlog, apparently at play, and the boys waved to them, and they responded to the greeting. A witness, who was in the kitchen-car of a work-train standing on an adjoining sidetrack, testified that she heard noises which she found to be the scream of a child, and that, when she looked in that direction, she saw appellee attempting to roll out from under the edge of the train. She testified that she saw two other boys running away from the scene, but that appellee was unable to walk, for the reason that his leg was cut off. This witness testified that the place where she discovered the boy was at the fifteenth car from the engine.

It is undisputed that the train of cars was not cut in two, and that appellee was not struck by the front or rear of the train, but came in contact, as before stated, with one of the cars in the train. It is not contended that the lookout statute requiring signals is involved in the controversy. There is a controversy between counsel as to whether or not the train had come to a full stop before the injury occurred and as to the length of time the train remained standing before the injury occurred. We deem it unnecessary, in view of the conclusion we have reached, to determine those questions.

Counsel for appellee undertake to sustain the recovery solely on the ground that appellee, when injured, was attempting to cross the track at the pathway crossing referred to above; that, in the...