St. Louis Southwestern Railway Co. v. Thompson

• Decision Date: 08 March 1909
• Citation: 117 S.W. 541,89 Ark. 496
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. THOMPSON
• Court: Arkansas Supreme Court

117 S.W. 541

89 Ark. 496

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. THOMPSON

Supreme Court of Arkansas

March 8, 1909

Appeal from Lafayette Circuit Court; Jacob M. Carter, Judge affirmed.

Judgment affirmed.

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

Warren Hamiter & Smith, for appellee.

If it be conceded that appellee was negligent, still appellant, in failing to exercise ordinary care to avoid injuring her after discovering her peril, is liable. 62 Ark. 164; 61 Ark. 340; 74 Ark. 407; Id. 478.

OPINION

FRAUENTHAL, J.

The plaintiff below, Mrs. M. E. Thompson, instituted this suit against appellant, and alleged in her complaint that on December 11, 1906, the defendant did carelessly and negligently run one of its engines and trains against and upon her in the town of Stamps, and thereby did injure her in the sum of two thousand dollars. The answer denied the allegations of the complaint, and pleaded contributory negligence, alleging that the plaintiff was walking along by the side of and near the track where defendant's trains were passing, and by her own carelessness and negligence fell against one of its cars after the engine had passed her, and that on account of her age she was careless in walking along so near the track. The evidence tended to establish the following state of case: In the forenoon of December 11, 1906, the plaintiff had gone to the post office, and was returning to her home. The track of defendant's road in the town of Stamps runs practically east and west. The depot in use at the time of the accident is about one quarter of a mile west of the old depot and between these and on the north side of the railroad is the post office. There is a walk leading from the post office to the railroad, and a walk or pathway continues on the railroad right of way, east and west, and runs near to and by the side of the railroad track. The public in going from the postoffice to points in the town would travel along this walk to the railroad and then upon the walk or path along and near the railroad track; and at the time of the accident and for a long period prior to that time this walk and pathway was used by everybody generally, to the knowledge of and without objection by defendant. The plaintiff on this occasion had gone from the post office to the railroad, and then was walking along the pathway or walk by the side of the track going east towards the old depot. When she reached the railroad, she looked up and down the track to see if any train was moving thereon, and, seeing none, she proceeded along the pathway next to the track going east in the direction of the old depot and also of her home. She was an old lady, and wore a bonnet. She had traveled by the side of the railroad track for a distance of from 75 yards to 100 yards when the defendant's passenger train coming from the west and at her back struck her. From the new depot to the old depot the track was perfectly straight and level, and there was no obstruction, and the plaintiff with her bonnet covering her head could have been easily seen by any one in the cab of the engine. The train had stopped at the new depot, and then had pulled out going east, and at the time it struck plaintiff was going at the rate, as variously estimated by witnesses, of from six to twenty miles per hour.

The plaintiff was on the left side of the track, and her right side was next the track. The engineer was in his cab on the right side of the track; and, as the train approached the plaintiff from her back, he was up in the cab looking down the track in the direction plaintiff was going; and the evidence tended to prove that he saw the plaintiff the entire distance from the new depot, and until he got within a few feet of her, when his vision was obstructed by the smoke stack of the engine. The plaintiff was walking up against the end of the ties, and so near to the track that her position was perilous and so apparent that it attracted the attention of a number of the witnesses. One of the witnesses was standing on the opposite side of the track, and when the train approached near her, fearing that she would be struck by the train because she was walking so close up to the track, he cried out to her to warn her of the danger, but she did not hear him. Another witness, who was walking behind her at some distance, seeing plaintiff walking so near the track as the train was approaching, and realizing her imminent danger, was so frightened by the sight, that, as the witness says, "she was scared so bad, she was sick."

Another witness had just passed the plaintiff going in the opposite direction along the track. When this witness had gone about seventy-five yards past her, and the train had passed him going in the direction of plaintiff, he stopped and turned to look at plaintiff, fearing that the train would strike her. She was walking so close to the track as he looked towards her and saw the train approaching her, that he believed the train would strike her. The train was then 75 yards away from plaintiff and was approaching her from the rear. The engineer was in the engine looking directly out of the cab and in her direction. There was no whistle blown; no bell was rung, and the speed of the train was not slackened until after it struck the plaintiff. The evidence tended to show that the pilot on the engine or the step on side of coach struck her on the right hip, turning her around and then causing her to fall. The evidence tended to show that the engineer saw the plaintiff's perilous situation at such a distance and in such time as to have stopped the train before striking her; that, after thus seeing her perilous condition, he did not give any signal or warning.

A verdict was returned in favor of plaintiff for $ 250; and, judgment being rendered thereon, the defendant has appealed to this court.

We find no error in the instructions given by the court. T...