146 Ark. 555 | Ark. | 1920
(after stating the facts). It is first insisted by counsel for the defendant that the evidence is not sufficient to support the verdict. In support of their contention, they insist that the court should have held a:s a matter of law that Andy Betts, who was killed, was guilty of contributory negligence in attempting to cross the railroad track at the time the train struck and killed him.
This court has expressly declared that the rule that the failure of a person, when about to cross a railroad track at a public crossing, to stop, look and listen for approaching trains constitutes contributory negligence barring recovery, is not a hard and fast rule under all circumstances. In other words, there is no absolute rule in this State that a failure on the part of the traveler to stop, look and listen at a public crossing is negligence as a matter of law and makes it obligatory upon the court under any and all circumstances to take the question of contributory negligence from the jury. C., R. I. & P. Ry. Co. v. Batsel, 100 Ark. 526, and cases cited; St. L., I. M. & S. Ry. Co. v. Roddy, 110 Ark. 161, and Smith v. Mo. Pac. Rd. Co., 138 Ark. 589.
In considering whether or not the court should have directed a verdict for the defendant, every fact and inference of fact favorable, to the plaintiffs, which the jury might believe to be true, must be accepted as true; and every fact unfavorable to the plaintiffs which the jury might reject as untrue must be rejected. Tested by' this rule, we do not think it can be said, as a matter of law, that Andy Betts was guilty of contributory negligence when he attempted to cross the railroad track on the evening he was killed. He was a farmer living out in the country from Blytlieville, and the jury might have found that he was familiar with the schedule of the train and the rate of speed at which it usually approached the Main Street crossing. There was a city ordinance which provided that no railroad engine, train, or car should be moved within the corporate limits of the town of Blytlieville at a greater speed than six miles per hour.
The fireman testified that the train was going at the rate of fifteen miles an hour when he first saw Betts approaching the main track on Main Street, and it is f airly inferable from his testimony that this was the usual speed at' which the train approached the Main street crossing.
One of the witnesses testified that Betts was walking fast, and that he stopped after crossing the sidetrack for a moment just before going on to the main track and looked toward the north. Other witnesses say that the train whistled some distance above the Main Street crossing and did not whistle any more after that. The jury might have inferred that Betts, as he looked toward the north, saw the headlight of the approaching train and on account of the snow thought it was approaching at its usual rate of speed, and that he would have plenty of time to cross the track ahead of tire train, as did the man just in front of him.
The jury might have also found that if the train had been approaching at a rate of speed not faster than fifteen miles an hour that Betts could have crossed in safety. It was inferable from the testimony that the train did not give the statutory signals of its approach by ringing the bell or sounding the whistle. This might have deceived Betts into thinking that the train was farther away than it really was. Then, too, as just stated, the condition of the atmosphere might have deceived him as above stated as to the rate of speed at which the train was approaching. Some of the witnesses said that the train was running at a speed of thirty miles per hour. The jury had a right to take into consideration all these facts in reaching its verdict. "When it has done so, we do not think that it should be conclusively said that under-all facts and circumstances adduced in evidence Betts was guilty of contributory negligence.
It is also contended by counsel for the defendant that the court erred in submitting to the jury the question of discovered peril. They point to the fact that the engineer and fireman both testified that Betts approached the track from the fireman’s side, and that the fireman signaled the engineer to stop the train as soon as he discovered that Betts was about to attempt to cross the main track in front of it, and that the engineer immediately applied the air brake in emergency and did all that he could to stop the train. Their testimony in this respect is corroborated by the evidence of other witnesses.
It can not be said, however, that the undisputed evidence warranted the court in taking away from the jury the question of discovered peril. Betts had nearly crossed the track before the train struck him. According to some of the witnesses, he was going at a fast walk. The jury might have found that if the engineer had blown a sharp blast -of the whistle this would have attracted Bett’s attention to the nearness of the approaching* train, and that he might have accelerated his speed or have jumped from the track to a place of safety. The failure of the engineer to give the danger signals was sufficient to submit to the jury the question of the negligence of the defendant with respect to the doctrine of discovered peril. Evans v. St. L., I. M. & S. Ry. Co., 87 Ark. 628, and St. L., I. M. & S. Ry. Co. v. Evans, 96 Ark. 547.
It is next contended that the court erred in its instruction on the measure of damages. In this instruction the plaintiffs are allowed to recover for-the financial loss to the widow and children by reason of Betts’ being-struck and killed by the railroad train. The instruction also permits the jury to find for the plaintiffs for the conscious pain and suffering, if any, suffered by the decedent by reason of the injury. This was the only instruction on the measure of damages, and it clearly authorized the jury to allow the widow and children damages for the conscious pain and suffering of Andy Betts. This was wrong. The widow and minor children were only entitled to sue for damages which they sustained by reason of the death, of the husband and father, and this was the financial loss to them of his comfort and support. They could not sue for damages for the conscious pain and suffering of decedent. Such suits must be brought, under our statute, by the personal representative of such deceased person. Kirby’s Digest, §§ 6289-6290.
It is contended by counsel for the plaintiffs, however, that no prejudice resulted to the defendant from this instruction. They point to the fact that the evidence was sufficient to show that their financial loss was more than $10,000, the whole amount recovered. There was a general verdict for the plaintiffs in the sum of $10,000. The instruction submitted to the jury the amount to be recovered for conscious pain and suffering- and also for the financial loss to the widow and children. Although Betts died in a short time, there was testimony from which the jury might have found that he endured conscious pain and suffering before his death. This court cannot know how much damages the jury intended to find, if any, for the conscious pain and suffering and how much for the financial loss for the widow and children. Therefore, the instruction was erroneous in submitting to the jury an element of damages which the plaintiffs were not entitled to recover, and this was prejudicial to the rights of the defendant.
In the case of Hines v. Johnson, 145 Ark. 592, the court held that, in the case of the death of a child leaving both a father and mother living, the right nf recovery of damages for the negligent killing of such child was, under our statute, in the father and not in the mother. Therefore, in an action brought by the mother in such a case, it was held error to instruct the jury that she might recover for the lost services of the deceased child. The reasoning of the court in that case applies here, and the judgment must be reversed because the verdict was general and there is no way for the court to determine from the record how much was erroneously awarded the plaintiffs on account of conscious pain and suffering endured by the husband and father before his death.
It follows that the judgment must be reversed and the cause remanded for a new trial.
