St. Louis Southwestern Ry. Co. v. Christian
| Decision Date | 28 April 1924 |
| Docket Number | (No. 333.) |
| Citation | 261 S.W. 297 |
| Parties | ST. LOUIS SOUTHWESTERN RY. CO. v. CHRISTIAN. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Columbia County; L. S. Britt, Judge.
Action by Howard Christian, a minor, by his guardian, against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.
John R. Turney, of St. Louis, Mo., and Gaughan & Sifford and Elbert Godwin, all of Camden, for appellant.
A. D. Pope, of Magnolia, and M. P. Huddleston and R. P. Taylor, both of Paragould, for appellee.
Howard Christian, a small boy about five years of age, was run over by a freight train of appellant's being operated in the city of Paragould. The boy's leg was mashed off, and he suffered pain. This is an action instituted by the guardian of the boy against the railway company to recover damages. There was a verdict against the company, awarding damages to appellee, and an appeal has been prosecuted.
There are many assignments of error, among which is one that, according to the undisputed evidence, there is no liability, and this is the only one which we find it necessary to discuss.
Appellant's line of railroad runs through the city of Paragould, slightly northeast and southwest, crossing the streets and alleys obliquely. Some of the streets and alleys intersected by the railroad are open, and some are closed. Vine street, near which the injury to appellee occurred, runs east and west, and is closed. The plats in evidence show that the street is laid out on both sides of the railroad, but there is no crossing there. Junction street, the next one on the north of Vine, is open, and also Park street, two blocks south of Vine, is open. Second street, which runs north and south on the west side of the railroad crossing, intersects Vine street at the edge of the railroad right of way. East of the railroad right of way Vine street is also obstructed by a manufacturing plant, shown on the plat as being nearly across the street adjoining the right of way. Just north of the north line of Vine street there is a trestle spanning a deep ditch. There are two ditches parallel with the main track, north and south, and on the west side of the track, which drain into the large ditch spanned by the trestle. Across the ditch, north of the trestle, there is a wooden stringer, 10 by 15 inches in size, used as a footlog or walkway. The footlog was placed there by the railroad company, and the first one placed there was replaced by a larger one. At the end of the footlog there is a path which leads across the main line of appellant's track, and also across the Missouri Pacific track. The footlog and the path which connects have, according to the evidence, been used by the public for many years, without protest or objection. Appellee was run over at a point on the track very near where this pathway crosses the track. He was run over by a freight train containing 58 cars. The train came into the city from the south, and slowed down preparatory to stopping at the water column for water. The train was 2,500 feet in length, and reached south from the water column to a point considerably south of the place where appellee was struck at the footpath. In other words, appellee was struck by one of the cars in the train, about the fifteenth from the engine. According to the evidence, the train moved into the city at a slow rate of speed, and the engine stopped at the tank. In coming to a stop, the engineer failed to accurately spot the engine so as to stop it at the water column, and it was necessary to back up a little.
There is no witness who saw the boy when he was run over by the train, and it is, to some extent, a matter of speculation as to how it occurred, but it is inferable that the boy was either attempting to crawl under the train, and thus pass over the track, or that he was hanging on to the lower rung of the ladder, attempting to ride the train. The only witnesses who saw the boy prior to the injury were the engineer and fireman, who testified that, as they passed up, they saw three boys on the side of the ditch near the footlog, apparently at play, and the boys waved to them, and they responded to the greeting. A witness who was in the kitchen car of a work train, standing on an adjoining sidetrack, testified that she heard noises which she found to be the screams of a child, and that when she looked in that direction she saw appellee attempting to roll out from under the edge of the train. She testified that she saw two other boys running away from the scene, but that appellee was unable to walk for the reason that his leg was...
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