St. Louis Southwestern Ry. Co. v. Jackson
Decision Date | 07 June 1909 |
Citation | 120 S.W. 158 |
Parties | ST. LOUIS SOUTHWESTERN RY. CO. v. JACKSON. |
Court | Arkansas Supreme Court |
Appeal from Circuit Court, Greene County; Frank Smith, Judge.
Action by S. H. Jackson against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for a new trial.
At the town of Rector, in Clay county, Ark., 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 the town had been used continuously by pedestrians since the railroad was built. Appellee, about 6 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 300 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 15 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 the 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 contained 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 employés 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: ...
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