St. L., I. M. & S. Ry. v. Wilkerson, 46 Ark. 513

46 Ark. 513 | Ark. | 1885

Battle, J.

On the 17th day of May, 1883, J. O. Lee was killed by a train of appellant. His daughter and sole heir, Mary "Wilkerson, brought this action for damages, which she claims she suffered by reason of his death.

There was some evidence, introduced on the trial, tending to show that J. G. Lee was, on or about the 17th day of May, 1883, walking on the track of the defendant, the St. Louis, Iron Mountain & Southern Railway Company, south of Little Rock; that while there a train of defendant ran, approaching him in the same direction he was walking, at the rate of fifteen miles an hour; that he was seen by the fireman of the train about one-half mile ahead, before the train reached him ; that at the time he was first seen he was staggering and had the appearance of being very drunk, and was walking on or near a trestle of the road, which was one hundred feet long and twelve or fifteen feet high; and that the train ran against him while on the trestle and killed him, without giving him any warning save the ringing of a bell a short time before the train struck him.

Appellant concedes that the evidence shows that plaintiff, Mary Wilkerson, was Lee’s daughter and sole heir; that he was a widower, about fifty years old, and sometimes became intoxicated.

Many instructions were given by the court to the jury. Among them was one given at the request of plaintiff, over the objection of defendant, in the words following:

“The plaintiff moves the court to instruct the jury that if they believe from the evidence the employes of the defendant railroad, on the, 17th day of May, 1883, discovered that J. O. Lee was upon the track of said railroad in a position where, by reason of the nature of the track at that place, or by reason of Lee’s condition, or both, it was not reasonable to suppose that he would or could get off the track in time to have saved himself, then it was their duty to use all reasonable appliances, if in their power, to save his life. And if the jury believe from the evidence that they had it in their power so to do, and that they negligently failed to use such reasonable appliances, whereby said Lee was killed, they must find for plaintiff', although they may find that he was guilty of contributory negligence in placing himself in such position.”

The jury were required, at the request of plaintiff and defendant, to make certain special findings, and they returned the same as follows: To plaintiff’s interrogatories they answered as follows :

First — Did the fireman see Lee upon the the track staggering when the train passed around the curve?

Ansioer — Yes.

Second — Was the manner and conduct of deceased, when first seen and up to the time he was struck, such as to lead a reasonable person to believe that he could not or would not escape from danger ?

Answer — Yes.

Third — Was there anything in the condition of the deceased, Lee, apparent to the observation of those upon the train, or anything in the condition of the track where Lee was walking, which should have led a reasonable man to. suppose that Lee would not or could not get off the track ?

Ansioer — Y es.

To defendant’s interrogatories they answered as follows i

First — Did deceased see the train in time to have gotten off the track before it struck him ?

Answer — No.

Second, — Did deceased have timely warning by .the ringing of the bell of locomotive, or otherwise ?

Answer — No.

Third — Had deceased stepped off the track before he was struck?

Answer — No.

Fourth — Were there any obstructions near or at the place where deceased was struck, that would have prevented deceased from stepping off the track in time to avoid the danger ?

Answer — Yes.

Fitfh — Was deceased drunk or sober at the time he was struck?

Answer — Intoxicated.

The jury returned a verdict in favor of plaintiff for-1712.50.

The defendant then filed its motion for a new trial, which was overruled. It saved exceptions and appealed.

The true rule and well settled doctrine governingin cases like this is stated in R. R. Company v. Pankhurst, 36 Ark., 376, thus: “ One who is injured by the mere negligence of another, cannot recover at law or equity any compensation for his injury, if he, by his own or his agent’s ordinary negligence or willful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and c'o-operating fault, the injury would not have happened to him, except where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence. ”

Lee had no legal right to be on that part of the railroad track of appellant where he was walking at the time he was killed. It was not at a public crossing, and was no part of a public highway. It was made solely for the running of the cars and train of appellant, and the fact that persons did walk upon it, however frequently, did not ■change it’s character and convert it into a highway for footmen. Being on the private property of appellant, he was where he should not have been, and was bound to use every precaution, every dilligence, every care, against any danger which might have happened to him there. Finlayson v. R. R. Co. I Dill., 579.

This was his duty. The fact that he was drunk did not relieve him of it. “Drunkenness,” it is said, “ will never ■excuse one for a failure to exercise the measure of care and prudence which is due from a sober man under the same circumstances. Men must be content, especially when they are trespassers, to enjoy the pleasures of intoxication cum periculis. When they make themselves drunk, and in that condition wander upon a railroad track, and ■sustain an injury, they will not be heard to plead their intoxication as an answer to the charge of negligence,” or as a reason why the railroad company should be held responsible to them for damages. R. R. Co. v. Pankhurst. 36 Ark. 371; Chicago, etc., R. R. Co. v. Bell, 70 Del., 102; Toledo, etc., R. R. Co. v. Riley, 47 Ill., 514; Herring v. W. & R. R. R. R. Co., 10 Ind., 402.

1.^sa^ilNegligence tory^giu sence' If the employes of a railroad company in charge of its train see a man walking upon its track at a distance ahead sufficient to enable him to get out of the way before the train reaches him, and are not aware that he is deaf or insane, or from some other cause insensible of the danger, or unable to get out of the way, they have a right to rely on human experience and to presume that he will act upon the principles of common sense and the motive of self-preservation common to mankind in general, and will get •out of the way, and to go on without checking the speed of the train until they see he is not likely to get out of the way, when it would become their duty to give extra alarm by bell or whistle, and if that is not heeded, and it becomes apparent that he will not get out of the way, then, as a last resort, to check its speed, or stop the train, if possible, in time to avoid disaster. If, however, the man seen upon the track is known to be, or from his appearance, gives them good reason to believe that he is insane or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, they have no right to presume that he will get out of the way, but should act upon the hypothesis that he might not or would not, and should use a proper degree of care to avoid injuring or killing him. Failing in this, the railroad company would be responsible for damages, if by the use of such care, after becoming aware of his negligence, they could have avoided injuring him. Lake Shore, etc., R. R. Co. v. Miller, 25 Mich., 279; R. R. v. Freeman, 36 Ark., 46; R. R. Co. v. Pankhurst, 36 Ark., 376.

The instruction objected to by appellant was properly given. ■ Comment on the facts of the case is unnecessary. It is sufficient to say there was some evidence to sustain the verdict and special findings of the jury. It is not for us to decide whether we would return a like verdict or believe the evidence was properly weighed.

Judgment affirmed.