St. Louis Southwestern Railway Company v. Jackson
Citation | 120 S.W. 158,91 Ark. 14 |
Parties | ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. JACKSON |
Decision Date | 07 June 1909 |
Court | Supreme Court of Arkansas |
Appeal from Green Circuit Court; Frank Smith, Judge; reversed.
STATEMENT BY THE COURT.
At the town of Rector in Clay County, Arkansas, appellant has a main line track and a passing side track running parallel with the main line for nearly a mile and being about nine feet apart. The space between the tracks south of town had been used continuously by pedestrians since the railroad was built. Appellee about six o'clock in the afternoon was walking south along the footpath between appellant's tracks. He saw south of him on the main line a freight train standing still some three hundred yards distant with the engine towards him. Between him and the track on the main line was an engine switching cars on the side track. This engine was approaching near him, and was blowing off steam. Appellee's attention was attracted by this, and he did not look to see what became of the train on the main line but, as the engine on the passing or side track came near, he walked within a foot of the ends of the ties on the east side of the main line. While thus absorbed and walking on south the train on the main line, going north at a speed of six or seven miles an hour, ran into him. The pilot beam, which extends beyond the rails about fifteen inches, struck appellee, knocking him down and injuring him severely. The engineer was in his cab on the side next to appellee. The whistle was not blown, the bell was not rung, and there was no effort to stop the train before appellee was injured. The train was equipped with air, and could have been stopped quickly. The jury might have found the facts as stated above from evidence adduced in behalf of appellee.
On behalf of appellant the fireman on the engine that ran down appellee testified:
The engineer testified:
The complaint alleged, among other things, the following "On the 5th day of May, 1908, the plaintiff was, without fault on his part, and on account of the negligence of the defendant, struck by a moving engine operated along its main line, a short distance south of its depot, whereby the plaintiff's shoulder and collar bone were dislocated, and he was damaged in the sum of $ 1,999."
The answer contains the following: "Defendant admitted that plaintiff was struck by one of its engines, but denied the injury resulted from the negligence of it or its agents or employees in charge of its train, and denied the plaintiff was wrongfully or negligently injured, and alleged his injury resulted from his own careless conduct, and without the fault of it or its agents, and denied he was damaged in the sum of $ 1,999."
Among other instructions the court gave the following:
The jury, upon interrogatories propounded, found that appellee was injured by the "northbound train."
The verdict was in appellee's favor in the sum of $ 312.50. Judgment was entered for that sum, and appellant seeks by this appeal to reverse the judgment.
Judgment reversed and cause remanded for new trial.
Sam H. West and J. C. Hawthorne, for appellant.
1. Appellee, under the evidence, was plainly guilty of contributory negligence, and cannot recover. He does not come within any of the exceptions announced in 78 Ark. 60. In 78 Ark. 355 the facts are entirely different. 79 Ark. 137; 80 Id. 186.
2. He was guilty of inexcusable carelessness. Contributory negligence follows as a matter of law under such circumstances. 69 Ark. 134; 61 Id. 549; 62 Id. 158; 65 Id. 238; 74 Id. 372. It was his duty to look for the approaching train. 81 Ark. 325; Ib. 368; 83 Id. 300; 84 Id. 270. See also 85 Ark. 532; 86 Ark. 306; 88 Ark. 172; 62 Ark. 245; 76 Id. 10.
3. There is no testimony or circumstance from which a conclusion could be reached that the employees discovered the plaintiff's position to be a perilous one, and 74 Ark. 407 and 84 Id. 478 do not apply. 69 Ark. 380. This case falls within 82 Ark. 522.
J. H Hill and...
To continue reading
Request your trial-
Chicago, Rock Island & Pacific Railway Company v. Batsel
......533] Missouri & N. Ark. Ry. Co. v. Bratton, 85 Ark. 326, 108 S.W. 518;. Moody v. St. Louis, I. M. & S. Ry. Co., 89 Ark. 103, 115 S.W. 400. The injury did not. occur upon the railroad ......
-
Kansas City Southern Railway Company v. Worthington
...... contention we are cited to the cases of St. Louis, I. M. & S. Ry. Co. v. Rush, 86 Ark. 325, 111 S.W. 263, and Chicago, R. I. & P. Ry. Co. v. ......
-
St. Louis, Iron Mountain & Southern Railway Co. v. Roddy
...161 S.W. 156 110 Ark. 161 ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. RODDY Supreme Court of ArkansasNovember 10, 1913 . Appeal. from Hot ......
-
Graysonia-Nashville Lumber Co. v. Carroll
...144 S.W. 519 102 Ark. 460 GRAYSONIA-NASHVILLE LUMBER COMPANY v. CARROLL Supreme Court of ArkansasFebruary 19, 1912 ... peril. St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407, 86 S.W. 426; . Louis S. W. Ry. Co. v. Jackson, 91 Ark. 14, 120. S.W. 158; Adams v. St. Louis, I. M. & S. ......