102 Ark. 460 | Ark. | 1912
(after stating the facts). It is conceded that Mrs. Carroll was a trespasser, and it is the settled rule in this State that the only duty a railroad company owes a trespasser walking on its track is not to wilfully or negligently injure him after discovering his peril. St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407; St. Louis S. W. Ry. Co. v. Jackson, 91 Ark. 18; Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522.
In the application of this rule it is earnestly insisted by learned counsel for the defendant that the verdict of the jury was not warranted by the evidence. It must be conceded that the case is a very close one, but we are unable to agree with the contention of counsel for the defendant. Under the principles of law announced in the cases cited above when the defendant was charged with the knowledge of the presence of Mrs. Carroll on its track, it immediately owed her the duty of exercising ordinary care and diligence to prevent injury to her. The boy, James Shope; testified that the brakeman on the flat car in front of the engine looked at Mrs. Carroll and then looked away to the side of the track. He says there were no obstructions and nothing to prevent the brakeman from seeing her when he looked at her. Another witness testified that he saw the brakeman walking towards the front of the flat car and looking towards Mrs. Carroll. The boy Shope says that he thinks that Mrs. Carroll walked on the track for a distance of twenty-five yards before she was struck. The railroad company had the distance measured from the trestle to a point on the track opposite Mrs. Rawlins’ house, and the distance is 112 feet. They also had the distance measured from the trestle to the top of the hill where the train could first be seen, and this was 547 feet. All the witnesses say there was nothing to obstruct the view of the brakeman. From this testimony the jury was warranted in finding that the brakeman did see Mrs. Carroll walking down the track a short distance ahead of the train with her back toward it. From this time on the defendant owed Mrs. Carroll the duty of exercising ordinary care and diligence to prevent injury to her. It is the theory of the defendant company that Mrs. Carroll knew that the train was approaching her, and believed that she could cross the trestle and step over to the side of the track before • the train reached her, and that she slipped and fell in the trestle while crossing it. The testimony shows that the train was making a good dfeal of noise as it approached, and that all of the other persons heard it coming, and that Mrs. Carroll was an able-bodied woman and in possession of all her faculties. From this testimony, under the instructions given by the court, the jury might have found for the defendant. But the testimony also shows that Mrs. Carroll never looked back from the time she stepped on the railroad track until just before the train struck her. The boy, Shope, says that she was struck just before she reached the trestle, and was dragged by the train across the trestle into the hole where she was found. The trestle was about ten feet long and averaged about two and a half feet in height. The hole in which she was found was about two feet from the end of the trestle farthest from her, when she was struck. Hence, if the testimony of the boy Shope is true, she was struck by the train just before she reached the trestle, and was dragged nearly across it, a distance of about eight feet. The evidence shows that the train was a rolling down grade about 2^2 per cent, and that the steam was shut off. The engineer says that the speed of the train was about four miles per hour. Under these circumstances, the jury were warranted in believing that Mrs. Carroll was walking along the track, and, through inattention, absentmindedness, or some other mental abstraction, was unaware of the near approacah of the train, and that, had the servants of the defendant blown the whistle when they saw that she did not look back, they might have attracted her attention, and she could have stepped to one side and avoided injury to herself. Again, the testimony shows that the train could have been stopped in the space of six or eight feet; that it could have been stopped either by the engineer or by the brakeman turning off the angle-cock in the front of the engine. Had the brakeman kept a lookout after he discovered her presence on the track, he would have seen that she did not get off when the train was getting nearer to her. He could then have warned her of her danger, or, failing in that, could have stopped the train in time to have avoided injuring her. At least, these are the deductions that the jury were warranted in drawing from all the facts and circumstances adduced in the evidence. The boy, Shope, said that she did not look around until just before she was struck by the train. Another witness said that he saw her standing six or eight feet in front of the train facing it the moment before she was struck. The jury might have inferred from this testimony that she was wholly unaware of the approach of the train until just before it struck her, and that when she heard it she turned around in a startled manner facing it. As we have already seen, the jury was warranted in finding that the brakeman saw Mrs. Carroll a short distance in front of the train walking along the track with her back to it. From the evidence they were also warranted in believing that, had he looked again, he would have seen that she was unaware of the proximity of the train and the impending danger to her.
The testimony of the boy Shope is criticised because he says that the distance from the top of the hill where the train first came in sight to the scene of .the accident was about a quarter of a mile when in fact it was only 547 feet, as shown by actual measurement. This was a mere inaccur.acy of the judgment of the boy, and did not tend strongly to show that his testimony as to the thing he saw was not true. In any event his credibility was a question for the jury, and they had the right to believe such parts of his testimony as they believed to be true and reject that which appeared to be untrue.
The jury had a right to weigh the testimony and draw all reasonable deductions from it warranted by their common knowledge and experience with human affairs, and, when all the facts and circumstances adduced in evidence are considered together, we think the jury were warranted in finding that the servants of the defendant, after discovering the peril of Mrs. Carroll, did not use ordinary care and diligence to prevent injury to her.
The following questions and answers were asked a witness in the absence of the jury, and were excluded by the court from the jury:
“Q. Detail all that Mrs. Carroll told you about how this accident happened? A. I asked her how it happened, and she says: T was over to my daughter’s and started home, and she told me to wait until that train passed, and I told her I thought I could get home before the train got there, and started, and the accident happened.’ ” .
It is insisted by counsel for the defendant that this was error, but this court has decided adversely to this contention in the case of Murphy v. St. Louis, I. M. & S. Ry. Co., 92 Ark. p. 159, where it held: “In a suit by an administrator of a deceased person to recover damages on account of his killing for the benefit of his mother or his next of kin, it was error to permit the defendant to offer in evidence a written statement made by deceased during his lifetime to the effect that his mother was dead, as there was no privity between the next of kin and the deceased.”
Hence it will be seen that the excluded testimony was not competent in the individual case of the husband against the defendant. The testimony not being competent in the case of the husband against the defendant, the defendant should have asked that the testimony be limited to the case in which it was admissible, and, not having done so, he is not now in an attitude to complain. Murphy v. St. Louis I. M. & S. Ry. Co.. 92 Ark. 159; St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 482.
The court gave the following instruction: “If you find for the plaintiff as administrator, you will assess the damages at whatever sum you may find from the testimony to be a fair and reasonable compensation for the pain and suffering, if any, that was endured by plaintiff’s intestate on account of the injury complained of. And in this you are to be guided by your sound judgment and discretion as jurors.” It is insisted that the court erred in giving this instruction because by it the jury were directed to be guided by their judgment and discretion, instead of the testimony, in assessing the damages. We do not think the instruction is susceptible of this construction. The jury were plainly told that they were to assess the damages at whatever sum they found from the testimony to be a fair and reasonable compensation, and the court meant to tell them that they were to be governed by their judgment in determining from the testimony what the amount of damages ought to be. If counsel for the defendant thought the instruction open to the objection they now make, they should then by a specific request have asked the court to change the language, and, not having done so, they can not now complain.
It is next insisted that the court erred in giving instruction No. 5 as follows: “If you find for the plaintiff in his own individual right, you will in a separate finding assess his damages in whatever sum you may believe from the evidence he has been damaged by reason of the loss of the service and companionship he would have received from her, but for the injury complained of in his action.” In support of their contention they rely on the case of Helena Gas Co. v. Rogers, 98 Ark. 413. That case is not authority for their contention. There the court held that the wife could not recover for her own mental distress on account of her husband’s pain and suffering. The husband is entitled to the society and companionship of his wife; and where he is deprived of her services and society or companionship, he has suffered a legal injury, and-is entitled to compensation therefor. This is so by the express terms of our statute. . Section 6288, Kirby’s Digest.
Counsel for defendant complain that the court erred in not giving certain instructions asked by it on the subject of discovered peril. The court had already in its instructions given at the request of the defendant fully and completely covered this phase of the case, and it was not necessary to repeat the instructions.'
The judgment will be affirmed.