Webb v. Kansas City Southern Railway Company

• Decision Date: 13 January 1919
• Docket Number: 60
• Citation: 208 S.W. 301,137 Ark. 107
• Parties: WEBB v. KANSAS CITY SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

208 S.W. 301

137 Ark. 107

WEBB v. KANSAS CITY SOUTHERN RAILWAY COMPANY

No. 60

Supreme Court of Arkansas

January 13, 1919

Appeal from Polk Circuit Court; W. C. Rodgers, Special Judge affirmed.

STATEMENT OF FACTS.

Dora Webb sued the Kansas City Southern Railway Company for damages for the death of her minor son, alleged to have been caused by the negligence of the defendant. The material facts are as follows:

On February 10th, 1918, Earl Webb, a boy fourteen years of age in company with some other boys boarded an extra freight train southbound, at the water tank at the city of Mena Arkansas. This train collided with a regular freight train northbound, running on schedule time at a point about one and a half miles south of Mena. Earl Webb and another boy were killed when the two freight trains ran into each other. The collision was caused by the negligence of the servants of the railway company of the extra freight train southbound, in leaving Mena before the northbound freight train arrived there.

According to the testimony of Verna Byrd, a boy thirteen years of age he got on the train at the water tank and rode on the outside of a coal car which was the second car from the engine. The other boys were hidden in the coal car, which was loaded with pipe. All the boys were stealing a ride on the train. He and a boy named Sydney Cecil, who was hidden in the car with the piping, jumped off of the train about the same time. One of the brakeman saw Byrd, but the latter did not know whether or not the brakeman saw the other boys. Other facts will be referred to in the opinion.

The court directed a verdict for the defendant on the ground that the trainmen did not see Earl Webb on the train. From the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

Judgment affirmed.

J. I. Alley, for appellant.

The court erred in directing a verdict for the defendant.

It was the duty of the defendant to use ordinary care not to injure the deceased after discovering him on the train. 90 Ark. 278; 76 Ark. 106; 97 Ark. 137; 129 Ark. 377.

It was a question for the jury. The plaintiff was on the train; an employee saw him get on; saw him after he was on; saw him after the train started; was near enough to speak to him and never ordered him off, nor stopped the train for him to get off. It was error, therefore, to take the case from the jury. 103 Ark. 231; 96 Ark. 394.

The court erred in not granting a new trial on the ground of newly-discovered evidence as provided by statute. The statements were made upon the ground, at the wreck and soon after, and were part of the res gestae, and were competent. Kirby's Digest, Sec. 6215, subdivision seven.

James B. McDonough, for appellee.

The court committed no error in directing a verdict for the defendant.

Plaintiff, being a trespasser, his minority was immaterial. The defendant owed him no duty except the exercise of ordinary care to avoid injuring him after discovering his peril. 129 Ark. 382; 76 Ark. 106; 83 Ark. 300; 97 Ark. 137.

There was no error in the court refusing to grant a new trial on the ground of newly-discovered evidence. It is well settled in this court that the granting of a new trial on account of newly-discovered evidence is within the sound discretion of the trial court and in the absence of an abuse of that discretion this court will not disturb the decision of the lower court. 118 Ark. 49; 118 Ark. 277; 85 Ark. 33; 103 Ark. 589. The evidence wholly fails to show that due diligence was used to discover the new evidence, hence the court was correct in its ruling. 74 Ark. 377; 73 Ark. 377; 30 Ark. 723; 23 Ark. 528; 55 Ark. 312.

OPINION

HART, J., (after stating the facts).

It is true the collision occurred on account of the negligence of the servants of the railway company but Earl Webb, according to the undisputed evidence, was riding on the train without lawful right to do so and the servants of the company owed him no duty except the exercise of ordinary care to avoid injuring him after discovering his perilous situation. St. Louis Southwestern Ry. Co. v. McLaughlin, 129 Ark. 377, 196 S.W. 460, and cases cited, and Tyler, Admr., v. St. L., I. M. & S. Ry. Co., 130 Ark. 583, 198 S.W. 128.

Earl Webb being a trespasser, his minority was immaterial since the railway company would not be liable unless it discovered his peril in time to have avoided injuring him. Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278, 119 S.W. 659. According to the principles of law laid down in the above mentioned cases the burden of proof in this case was on the plaintiff. These principles of law are conceded by counsel for the plaintiff, but he insists that the court should have submitted to the jury the question of whether or not the servants of the southbound freight train discovered Earl Webb on...