St. Louis Southwestern Railway Company v. Graham

• Decision Date: 13 May 1907
• Citation: 102 S.W. 700,83 Ark. 61
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. GRAHAM
• Court: Arkansas Supreme Court

102 S.W. 700

83 Ark. 61

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. GRAHAM

Supreme Court of Arkansas

May 13, 1907

Appeal from Ouachita Circuit Court; Charles W. Smith, Judge affirmed.

STATEMENT BY THE COURT.

C. W Luhrsen was a young man engaged in the civil engineering department of appellant railroad. He was recently graduated from the Agricultural & Mechanical College of Texas in civil engineering, and obtained employment from appellant in its engineering service at $ 45 per month about six weeks before his death, which occurred on the 9th of October, 1900. He was then 21 years of age, and had graduated the preceding June. At the time of his death he was in company with J. D. Carter a classmate of his, who had likewise obtained employment in the engineering corps under E. J. Nichols, assistant engineer in charge of the maintenance of way for the Camden Division Luhrsen, Nichols and Carter were riding a railroad velocipede, commonly called by witnesses a "speeder." Nichols left them as they were nearing the city, in order to reach home sooner, as he anticipated that the speeder would be laid out by a freight engine which was switching in the yards, and it became the duty of Luhrsen and Carter to carry the speeder on to the station.

An ordinary freight engine was doing the switching for the local freight, which had shortly before reached Camden. In doing the switching, the engine with several cars attached to it had passed Luhrsen and Carter on the velocipede, they having got out of its way and got back on the track after the engine passed south. They started north again, watching for a passenger train from the north which was almost due. Just before they reached a trestle called the Ravine Trestle, they stopped, or nearly so, to look and listen for this passenger train. Not hearing or seeing it, they proceeded on their journey north, making about six miles an hour.

A short distance after passing the trestle they were overtaken by the said engine. It was backing with two cars attached to it, the tender foremost, and on the tender a brakeman was riding with a lantern, keeping a lookout. Carter saw the engine coming when it was seventy-five or a hundred feet back (south) of them. He jumped and called to his companion to jump. Luhrsen in jumping from the speeder became entangled with the wheel and was run over and instantly killed. Carter escaped.

There was some evidence tending to prove that the engine was running from twelve to twenty miles an hour. The trainmen in charge of it say that it was running from six to ten miles an hour. Probably the consensus of their testimony would indicate a speed of about six miles, or a little more, per hour. This was in the yards of the company, and there was a rule of the company prohibiting a speed within the yard limits of over six miles an hour.

Carter says that at the point at which Luhrsen was struck the velocipede with the two men upon it could have been seen for a distance of about four hundred feet if the engine had been equipped with an ordinary headlight. Owing to a curve in the track, it would not have been in sight for more than four hundred feet. The accident occurred at 6:10 P. M., and the night was a cold, clear, starlight night. Carter says that an object the size of the speeder with two men upon it could have been seen by a man of ordinary vision at that time 250 feet south of the point where Luhrsen was killed. The brakeman keeping lookout says he was keeping a careful watch, and the men on the speeder were only twenty feet away when he saw them; that he immediately gave the stop signal to the engineer, who brought the engine to a quick stop. That the engineer used every means in his power to bring the train to a quick stop, and that he made as good a stop as could have been made after receiving the signal, is undisputed. There is a conflict in the testimony as to how far the train ran after striking the velocipede before it was brought to a stop, ranging from fifty feet by the brakeman to 107 feet by Carter. There was testimony on behalf of appellant that the bell was continuously ringing while the train was traveling through the yards, while the testimony of Carter is that he failed to hear any bell ringing on the engine.

The track was slightly up grade at the point of the accident, and the testimony on behalf of appellant is that the engine in question, running six to eight miles an hour, with the two cars attached, could have been stopped in about fifty-five or sixty feet. If the speed was greater, the distance would, of course, have been further.

Young Luhrsen was the only son of a family of five. By a family agreement, two of his sisters dropped their education to let him be advanced, and his father devoted his limited means to educate him, with the understanding that as soon as he could begin earning money he was to help educate his sisters. His father spent $ 2,700 on his education, and the young man promised his father and his sisters that as soon as he could earn the money he would repay the same to his father for the education of his sisters. It was also shown that other contributions were made to him by his father, which were expected to be repaid in the same way. He was shown to be in fine physical condition, and a man of exemplary habits and fine character, with an opportunity for advancement in his calling. The wages of men in the engineering corps of the appellant road ranged from $ 40 to $ 150 a month. He took the position with the railroad company with the expectation and intention that he could then begin repaying his father for the money advanced for his education. He had not drawn any money at the time he was killed.

This suit was an action by his father as administrator appointed by the county court of De Witt County, Texas. Afterwards, W. H. Graham, the appellee, was substituted for the father as administrator. There was a recovery for the plaintiff for $ 2,150, and defendant has appealed.

Judgment affirmed.

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

1. A foreign administrator is without authority to sue in this State for the benefit of the next of kin, in a personal injury case. 54 Ark. 64. This point does not appear to have been presented by the defendant in 76 Ark. 377, but only the fact that the administratrix had remarried, and that ipso facto her letters were revoked. See Kirby's Digest, §§ 6289, 6290, 7808; id. §§ 2, 14. The principle of comity does not apply in this case. 9 S.W. 540; 22 S.W. 1062; 26 S.W. 455.

2. Under the facts in proof defendant is not liable, neither was it guilty of any negligence causing the accident. As to the speed of the train, the preponderance of the evidence discloses that it was not going over 7 miles per hour; but if it were going at the rate of 12 or 15 miles per hour, that would not have been negligence. 63 Ark. 182. It is not contradicted that the bell was continuously ringing, and it is not claimed that the trainmen were guilty of any negligence after discovering deceased on the track.

3. Deceased was guilty of contributory negligence. It is the duty of one who is on a railroad track to listen and to look for trains approaching from either direction, and to continue to do so, using his sense of sight and hearing until the danger is past. Where the facts are undisputed, the question whether or not deceased was guilty of contributory negligence is one of law for the court. 76 Ark. 13; 77 Ark. 398; 61 Ark. 550; 62 Ark. 235; id. 245; 64 Ark. 364; 69 Ark. 380. In this case, because of the noise made by the velocipede, it was more incumbent than usual on deceased to exercise the sense of sight. 61 Ark. 558.

4. The sixth instruction errs as to the measure of damages, resulting in an excessive verdict. The son would necessarily have repaid his father, had he lived, in small annual instalments. To give the father a present sum equal to the total amount he would ultimately have received more than compensates him. 60 Ark. 558; 57 Ark. 384.

Smead & Powell and Scott & Head, for appellee.

1. A foreign administrator may sue in this State for the benefit of the next of kin in cases of personal injury. Kirby's Digest, § 6003; 62 F. 437; 40 N.E. 527; 41 Ind. 48; 103 U.S. 11; 76 Ark. 377. See also 36 Conn. 213; 105 Ill. 364; 41 Ind. 48; 16 Kan. 568.

2. Instructions given are to be construed as whole. It is not necessary that one instruction should embody all the theories possible in the case. The second and seventh instructions, to which appellant objects, if deficient when standing alone, were supplied by other instructions given at its request. 77 Ark. 458; 75 Ark. 325; 67 Ark. 531; 76 Ark. 227.

3. There was no contributory negligence on the part of deceased. The passenger train was entitled to the right-of-way, was due, and it was deceased's privilege as well as duty to give more attention to that end of the road whence he most expected danger. Moreover, he had the right to rely, to some extent at least, upon the employees in charge of this train not exceeding the speed limit for such trains established by the master. The question of contributory negligence was for the jury. 67 Ark. 377; 13 S.W. 817; 36 N.E. 1036; 45 N.W. 739; 47 N.W. 68; 78 Ark. 251; Id. 355; 79 Ark. 137; 79 Ark. 241; 74 Ark. 372; 76 Ark. 227.

4. The proof was ample that appellant was negligent in not keeping a lookout, in failing to have a headlight on the engine and in exceeding the speed limit. The lookout statute accrues to the benefit of employees of the railroad as well as to others, and, an injury or killing by a train being shown, a prima facie case of negligence is made out. Kirby's Digest, §§ 6607, 6773; 99 S.W. 81; id. 71; 65 Ark. 235; 92 S.W. 1120; 98 S.W. 363; 76 Ark. 166; 74 Ark. 374.

5. The sixth instruction,...