83 Ark. 300 | Ark. | 1907
In the -month of September, 1904, while Thomas Adams was walking across a trestle about one hundred feet long and twenty feet high at the highest point, in the railroad of the St. Louis, Iron Mountain & Southern Railway Company, near the city of Texarkana, in this State, a passenger train of the company ran against and injured him. He was .at the time a trepasser upon the trestle. He had no right to be there. It was constructed solely for the running of the cars and trains of the railroad company, and the fact that persons did walk upon it, however frequently, did not change its character and convert it into a highway for footmen. St. Louis, I. M. & Sou. Ry. Co. v. Wilkerson, 46 Ark. 513; Illinois, etc. Ry. Co. v. Hetherington, 83 Ill. 510; Spicer v. Chesapeake & O. Ry. Co., 34 W. Va. 514; Finlayson v. Chicago, B. & Q. Ry. Co., 1 Dillon, 579. He was in a place of danger, and in so being was guilty of contributory negligence, and can not recover damages on account of his injury, unless the trainmen either injured him wantonly, maliciously or intentionally, or were guilty of negligence in avoiding injuring him after discovering his peril. It is not sufficient to show that they by the use of ordinary care could have discovered his peril, but it should be shown that they actually discovered his peril in time to avoid his injury. St. Louis & S. F. Ry. Co. v. Townsend, 69 Ark. 380; Barry v. Kansas City, Fort Scott & M. Ry. Co., 77 Ark. 401; Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10; Chicago, R. I. & P. Ry. v. Bunch, 82 Ark. 522. And the burden was upon him, before he could recover, to show that they discovered him upon the trestle and his perilous condition in time to avoid injuring him, and wilfully and recklessly injured him. St. Louis & San Francisco Ry. Co. v. Townsend, supra. He has failed to advance any evidence to that effect. The evidence probably shows that they could have seen him, but that is not sufficient.
Judgment affirmed.