St. Louis Southwestern Railway Co. v. McConnell
| Decision Date | 07 April 1913 |
| Parties | ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. MCCONNELL |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court; Guy Fulk, Judge; affirmed.
Judgment affirmed.
S. H West and Bridges & Wooldridge, for appellant.
Appellant owed deceased no duty further than not to injure him after his peril was actually discovered by the trainmen, and if, by the exercise of ordinary care after discovering his peril they could not have prevented the injury, appellant is not liable. On this issue the burden of proof was on the plaintiff. It is not a question of whether the trainmen had been keeping a lookout in time to have prevented the injury but whether they saw him in time to have done so. 152 F. 686; 173 F. 753; 174 F. 597.
There can be no recovery for an injury, where the negligence of the injured party is one of the proximate causes directly contributing to the result, even though the negligence of the defendant also contributed thereto. 144 F. 47; 155 F. 22; 150 U.S. 248. See also 76 Ark. 14; 82 Ark. 525; 83 Ark. 301; 93 Ark. 24; 97 Ark. 564; 99 Ark. 584; 101 Ark. 532; 96 Ark. 366; 181 F. 95; 167 F. 675.
The fireman and engineer were positive that they did not see these parties on the trestle, and the testimony of Mrs. Zeisler as to the fireman seeing her is both unreasonable and contrary to the physical facts. There was, therefore, no substantial testimony to sustain the verdict. Supra; 79 Ark. 608; 76 S.W. (Mo.), 684, 688; 190 F. 316; 128 S.W. 890; 141 Ill.App. 174; 1 C. Rob. 252; 145 N.Y. 540; 40 N.E. 246; 64 A.D. 95; 71 N.Y.S. 721; 137 Mo.App. 47, 119 S.W. 328; 37 Ore. 74, 60 P. 907; 121 Mo.App. 92; 51 La.Ann. 178, 24 So. 771; 85 Ia. 167, 52 N.W. 119; 108 Wis. 57; 129 F. 715, 721; 15 Cal. 638, 645.
Asa Gracie and Mehaffy, Reid & Mehaffy, for appellee.
Counsel review the testimony and contend that the evidence is sufficient to sustain the verdict, and that it is legally sufficient to sustain the finding that the engine could have been stopped or slackened in time to have avoided injuring the deceased.
The complaint in this cause alleged that on Saturday night, April 30, 1910, about 8 o'clock, Fred Zeisler, to compensate whose death this suit is brought, with his wife, together with another gentleman and his wife, were walking in an easterly direction towards Rob Roy, Ark., across defendant's railroad bridge, which spans Plum Bayou, when one of defendant's engines negligently, carelessly, wrongfully and wilfully and without giving any warning or notice whatever, ran against and over the deceased, Fred Zeisler, wounding him, from which injuries, caused by the negligence of the defendant, he died in a short while. The administrator sues for damages in the sum of $ 5,000 for pain and suffering and for $ 25,000 to compensate the loss of contributions to deceased's next of kin. The complaint further alleged that defendant was having a bridge constructed across the Arkansas river near Plum bayou by the Missouri Valley Bridge & Iron Company; and that deceased had been employed by the bridge company on this bridge; and that he and other employees were accustomed to use the bridge over the bayou when crossing it; and that this custom was known to and acquiesced in by the railroad company; and that the operatives of the engine which struck the deceased knew of this custom at the time, and the complaint further alleged that the engineer not only knew that pedestrians crossed the bridge at all hours, but that the engineer actually knew of the presence of the deceased and his companions on the bridge in time to have avoided injuring them after discovering their peril and that the engine was being run at that time at a dangerous rate of speed, and that it was not equipped with the proper headlight as required by the law.
The answer denied all the material allegations of the complaint and denied that defendant had knowledge of any custom of pedestrians to cross the bridge or that there was any such custom. It alleged that deceased and his companions were trespassers upon the bridge and that the railroad company was not only under no obligation to be aware of their presence but that the operatives of the train were not aware of their presence. Defendant denied that the engine was being run at a dangerous rate of speed or that it was guilty of any negligence in failing to have the engine equipped with a 1,500 candle power headlight as required by law. It alleged that deceased was guilty of the grossest negligence in being upon its bridge and it plead this negligence in bar of plaintiff's right to recover.
At the trial the plaintiff abandoned the allegations in regard to the failure of the railroad company to equip its engine with the proper headlight and did not rely on any license to be upon its bridge, growing out of the custom of pedestrians to use it for passage across the bayou, but undertook to show that the train crew had discovered the deceased and his companions upon the bridge in time to have avoided injuring them by the exercise of ordinary care after discovering their perilous position. The case was tried upon the issue of discovered peril.
The trestle across the bayou was 330 feet long and was something more than twenty feet high. Deceased was about one-third of the way across the trestle at the time he was struck and his wife was the only party who escaped injury. As soon as deceased saw that the engine was about to strike them, he began to assist his wife to a place out of danger. She testified that he picked her up and let her swing to the trestle; that she swung down below the trestle to the ties; and that the engine struck him and knocked him off, inflicting injuries from which he died after suffering greatly for half an hour. The other man was slightly injured and his wife was killed.
The right to recover rests upon the evidence of Mrs. Zeisler and, while her story does appear to be improbable, we can not say that it is impossible or contrary to any physical fact, and her statement, which was weighed by the jury, made a question of discovered peril, which was properly submitted to the jury. It appears that the engine was being used for ditching and construction purposes and that at the time of the injury it was being returned to Pine Bluff for repairs, although its air equipment was in first-class order, and it was equipped with only a 150-candle power electric headlight. Mrs. Zeisler testified that when the engine came upon the trestle she saw the fireman standing at his window, looking straight ahead, and she is not only positive that she saw the fireman, but she is also positive that he was looking towards her as the engine came upon the trestle, at a distance of about 225 to 250 feet. The railroad track for some distance east of the trestle was straight and level, and the fireman and the engineer both testified that about 200 yards from the trestle they had checked the speed of the engine on account of two cows crossing the track just ahead of the engine. The engine, however, was not stopped as the cows got out of the way, but its speed was reduced to about fifteen miles per hour and immediately the engine increased its speed until at the time it crossed the bridge it was...
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