Todd v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 03 February 1913
• Citation: 153 S.W. 602,106 Ark. 390
• Parties: TODD v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

153 S.W. 602

106 Ark. 390

TODD v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

February 3, 1913

Appeal from Desha Circuit Court; Antonio B. Grace, Judge; affirmed.

STATEMENT BY THE COURT.

This was a suit by appellant against appellee for damages on account of personal injuries alleged to have been sustained by reason of the carelessness and negligence of appellee's agents in running appellee's passenger train No. 137 "up to and near the depot at the station of McGehee, in Desha County, Arkansas, in the night time without ringing any bell to give a warning of its approach." And, further, that appellee was negligent "in that there was on the engine during the striking no person on the lookout for persons or property on the track." And further, "that the train of which the engine doing the striking was a part, was approaching the plaintiff and entering the limits of an incorporated town at an unusual, reckless and unlawful rate of speed."

Appellant alleged that by reason of the carelessness and negligence above set forth he was struck by the train and injured so badly that one of his feet had to be amputated "about the middle, measuring from the heel to the end of the toes rendering him a cripple for life," etc. He prayed for damages in the sum of $ 10,000.

The appellee denied the material allegations of the complaint and set up the defense of contributory negligence on the part of the appellant.

On the issues of negligence and contributory negligence the testimony was substantially as follows:

Appellant testified that the train ran over his foot on the main line of the defendant's railway in McGehee Arkansas, about 7 o'clock in the evening. Was just above the depot; didn't see the train that hit his foot; was kept from seeing by being blinded by the light of the M. H. & L. train; didn't hear the approach of the train that hit him. No signal was given from the engine which struck him. Witness had started home, north from the depot, just before being struck. Had frequently been over the path before. It was the usual route for going in that direction. While on the way home he thought about his cousin coming in on the train; expected him on the M. H. & L.; so he turned to go back to the depot, and was going down by the side of the M. H. & L. track and got down near to the crossing at the switch and the light from the M. H. & L. train coming in just then blinded him. There was so much fuss he didn't hear anything. When he got down to the crossing he aimed to cross and as soon as he started to cross something knocked him down. Before he started to go back to meet his cousin he went across the track and looked up both tracks, but saw no train except the one on the M H. & L. track; didn't see the main line train at all before he was hit; didn't hear anything of it before he was hit; no signals were given from the main line train. He heard the signals on the M. H. & L. train; heard that train blow and heard the ringing. The only blowing and ringing was from the M. H. & L. train. He had an engagement to meet his cousin there that night, which was the real reason he went back down the track. Before he started back down the track he looked in the other direction; saw no train on the main line.

On cross-examination he testified that he didn't know anything particular about the railroad tracks; didn't know the exact time of the trains; had heard both trains were due about that time; had gotten up about the crossing before he saw and heard the M. H. & L. coming and concluded to go back. The M. H. & L. was about 300 yards away, he thought, when he saw it coming. He just walked along steady when he turned to go back; was walking beside the track; does not think the M. H. & L. train passed him; it was close to him, not over five feet from him, when the other train struck him; didn't see them stop for the switch to be thrown; didn't think it stopped. Saw the switchman throw the switch. Was right up above the switch, on his right side, when he threw it. M. H. & L. train at that time was near about at him. The crossing was right by the switch. Had not quite got to the switch when he attempted to cross the main line track. Was not over three or four feet from the track as he walked down from the M. H. & L. When the M. H. & L. train blew it was just as it got down at the mill; that was when he turned. Was about five hundred yards from it, less about twelve yards which he had walked, when he looked up the main line track to see if the train was coming; continued to look all the time and never did see a train on the main line; the lights from the M. H. & L. prevented as he walked down towards the depot. The M. H. & L. train was right close and he noticed the light shined so bright; didn't get blinded until the M. H. & L. got near to him.

There was a path the way he was going, which leads in the direction of his home; crosses the main line and the Helena line right about the switch. One runs right up along the side of the M. H. & L. track; it is a well defined track. Had been out there lots of times; had never seen any danger or "keep off" signals out there; never looked for the signals.

Other witnesses testified that the pathway that appellant was using that night was used by everybody that "goes up that way." Pedestrians use "that path between those two tracks from the depot north whenever they so desire at all times, both day and night. That was the route usually taken." There was no effort on the part of appellee to stop foot passage between the tracks.

Witnesses also testified that they observed the main line train, the one that struck appellant, when it came in that night, and that it didn't sound the whistle or ring the bell, that it came in at an unusual rate of speed. One witness stated that it came in at about twenty-five or thirty miles an hour faster than it usually comes in. The tracks of the main line and of the M. H. & L. were about four feet apart.

One witness on behalf of appellant testified as follows: "When he comes straight up to the depot, crosses the main line track and comes up the M. H. & L. track. There is a crossing there between there and the main track; goes the same way now, and all the time. It is the usual route traversed by pedestrians going in that direction." The path Todd was going on was the one which witness had described. "It is the usual custom of people going in that direction towards his home to use that path. Does not know of any steps that the company has taken to prevent it." When witness saw Todd he was making his way up the track to try to get out of the way of the train, and just as he looked around he saw him trying to get out of the way of the other train, and the other train (the main line train) struck him.

On behalf of the appellee, the engineer who was running the engine of the train that struck appellant testified that "it was a common occurrence to see people passing along the tracks while trains were passing in the places indicated." He saw some man there about the places indicated, probably a hundred feet ahead of the engine, something like that, walking between the main track and No. 1, walking in the same direction the train was going, and he was walking in the same direction when he passed out of his sight behind the front end of the engine. He had no way of telling how far it was from the place of the injury to where he first saw plaintiff, thought it was in the neighborhood of where he was lying when he got off of the engine and walked back after he was struck. He was going twelve or fifteen miles an hour when he reached the place where the boy was struck. He had an engine and was not positive whether he had three or four coaches. Could stop a train of that size in about 350 feet when going at that rate of speed. There was nothing unusual in the conduct of this boy; just regarded him as another man, as he so commonly saw men at that place. "It would be about six feet between the cars if there was one on each track, and a person would be safe standing in between the tracks."

This witness further testified, "you can't stand in front of a train and see the train with the headlight burning; you can see the headlight, but not the train. If two trains were running parallel and both had headlights and both were shining in the same direction you could see both headlights. You could not see the train, but the headlights."

The above is substantially the testimony upon which the court instructed the jury as follows:

"Giving all the evidence in favor of the plaintiff its strongest probative force, it wholly fails to show any negligence whatever on the part of the defendant to cause the injury complained of; it does establish the fact that plaintiff was guilty of contributory negligence. The jury are, therefore, instructed to render a verdict for the defendant."

Judgment was entered accordingly for the defendant, and the appellant duly prosecutes this appeal.

Judgment affirmed.

X. O. Pindall, for appellant.

1. If the evidence viewed in the light most favorable to appellant was legally sufficient to sustain a verdict in his favor, the court erred in giving the peremptory instruction to find for the defendant. 93 Ark. 191; 91 Ark. 340, and cases cited.

2. Proof of injury by the operation of a train makes out a prima facie case of negligence, and the burden of proof is on the railway company to show that its train operatives were at the time of the accident in the exercise of reasonable care and were not guilty of negligence causing the injury. The failure to keep the constant lookout required by statute is negligence. Kirby's Dig. §§ 6773, 6607; 58 Ark. 454; 65 Ark. 237; 63 Ark. 636; 70 Ark. 481; Acts 1911, p. 275.

3. On the question of...