St. Louis Southwestern Ry. Co. v. Graham

• Citation: 102 S.W. 700
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. GRAHAM.
• Decision Date: 13 May 1907
• Court: Supreme Court of Arkansas

102 S.W. 700

ST. LOUIS SOUTHWESTERN RY. CO. v. GRAHAM.

Supreme Court of Arkansas.

May 13, 1907.

Appeal from Circuit Court, Ouachita County; Chas. W. Smith, Judge.

Action by W. H. Graham, administrator of the estate of C. W. Luhrsen, against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

C. W. Luhrsen was a young man engaged in the civil engineering department of appellant railroad. He was recently graduated from the Agricultural and 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 gotten out of its way and gotten back on the track after the engine passed south. They started north again, watching for a passenger train from the north, which was about 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 75 or 100 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 12 to 20 miles an hour. The trainmen in charge of it say it was running from 6 to 10 miles an hour. Probably the consensus of their testimony would indicate a speed of about 6 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 6 miles an hour. Carter says that at the point at which Luhrsen was struck the velocipede with two men upon it could have been seen for a distance of about 400 feet if the engine had been equipped with an ordinary headlight. Owing to curves in the track, it would not have been in sight for more than 400 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 20 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 50 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 upgrade 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 55 or 60 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, Tex. 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.

S. H. West and Gaughan & Sifford, for appellant. A. B. Davidson, Smead & Powell, and Scott & Head, for appellee.

HILL, C. J. (after stating the facts).

1. The first question presented is as to the right of a foreign administrator to maintain such an action in this state. This is an action founded upon the Lord Campbell's act (sections 6289, 6290, Kirby's Dig.). The argument is made that a foreign administrator can only recover in this state for sums which would be assets for the payment of debts, and Fairchild v. Hagel, 54 Ark. 61, 14 S. W. 1102, is relied upon. But that decision cannot be taken to mean anything beyond the law as applied to the facts therein. It was dealing with a foreign administrator seeking to recover lands in this state, and what was said of that action was well said; but the decision does not apply to a state of facts where recovery is sought in a personal action by a foreign...