| Ark. | May 19, 1913
The appellant contends that the proximate cause of the death of Charles Champion was the fact of his being knocked down on the track by his companion running into him, when he was in front of the moving car. On this question, the court instructed the jury, at the instance of appellant, as follows:
“If you-find that a child ran into the deceased child and knocked him down on the track, and, without the intervention of this act, that the result would not have followed; and you further find that men of ordinary care and prudence would not, in switching, anticipate such an occurrence, then the act of the boy knocking him down would be the proximate cause. ’ ’
The instruction, given at the instance of appellant,, was certainly as favorable to it as it could expect, and it has no right to complain. For under the lookout statute of May 26, 1911, enacted before the injury herein complained of, no matter what may have caused the unfortunate predicament of young Champion, if the employees of the appellant in charge of its train, by keeping the lookout, could have discovered his peril in time to have prevented his injury, by the exercise of ordinary care, then appellant is liable. See Acts of Arkansas, 1911, page 275; Railway v. Lindley, 151 S.W. 246" date_filed="1912-11-18" court="Ark." case_name="Central Railway Co. v. Lindley">151 S. W. 246; St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431" date_filed="1913-03-31" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Gibson">107 Ark. 431, 155 S. W. 510.
The child could not have been in a more perilous position, by reason of having been knocked down on the track, than he would have been had he deliberately placed himself in that position, and yet even though he might have voluntarily assumed the dangerous situation in front of the moving cars, still the railroad company, under the above statute, would be liable for his death, if by keeping the lookout which the statute requires it could have discovered his peril in time to have avoided killing him by the exercise of ordinary care. In other words, under the lookout statute, where the injury complained of could have been avoided by keeping the lookout therein prescribed, then the failure to keep such lookout, resulting in the injury, is the proximate cause of such injury, no matter what may be the causes by which the party injured has been placed upon the track. The intention of the Legislature was to make railway companies absolutely liable for the killing or injuring of persons on their tracks, where such killing or injuring could have been avoided by keeping the constant lookout which the statute requires. The effect of the statute in the case of killing of persons on a railway track by the running of trains is to make the failure to keep the lookout, which the statute prescribes, the proximate cause of such killing, where, if such lookout had been kept, the perilous situation would have been discovered in time to have avoided the killing.
Therefore, under the statute, in suits for damages against railways, for the killing of a person on their tracks by the running of trains, where the negligence alleged is a failure to keep the lookout, the issue is as to whether or not the company was negligent as alleged, and not whether snch negligence was the proximate cause of the death, for, as wé have stated, if the person was killed while on the tracks of the railway, by the running of trains, and such person would not have been killed had the lookout required been kept, then the law makes such failure to keep the lookout the proximate cause of the death, no matter by what cause or under what conditions the party killed may have been upon the railway tracks. The being upon; the railway tracks, whether by accident, through negligence, or from whatever cause, would be but a mere condition or incident to the killing and not the proximate cause thereof.
The court erred in submitting to the jury the question as to whether or not the alleged negligence of appellant in failing to keep the lookout required by the statute was the proximate cause of the death of Charles Champion. But the error was not prejudicial to appellant.
It follows, therefore, that the court did not err in refusing appellant’s prayers for instructions to the effect that the evidence was not sufficient to show that the defendant had been guilty of any negligence, which was the proximate cause of the injury, and that the proximate cause of the injury, under the evidence, was the boys running together and one being knocked down upon the railroad track.
• The appellant also contends that the court erred in submitting to the jury the question of the alleged negligence of the company in failing to give signals on approaching the crossing. The court, among other things, told the jury that one of the grounds of negligence alleged was the failure of appellant to ring the bell or sound the whistle, and that if this ground was proved, and was the proximate cause of the death of the child, that they should find for appellee, unless contributory negligence barred recovery. But in another instruction, given at the request of appellant, the court told the jury that if the child knew that the car was moving and went in front of the car, then a failure to ring the bell or sound the whistle should not be considered, because in such case the failure to ring the bell or sound the whistle would not be the proximate cause of the injury. We are of the opinion that under the undisputed evidence, the. failure on the part of the appellant to ring the bell or sound the whistle could not have been the proximate cause of the injury, and the court might have so told the jury in so many words. But when the instructions on this issue are considered together, there was no prejudicial error in the instructions. Indeed, the instructions on this issue are more favorable to appellant than they should have been, because in these instructions the court' virtually told the jury that contributory negligence would bar recovery, whereas, such is not the law, if the killing was caused by the failure to keep the lookout required by the statute.
Appellant contends that there was no evidence to warrant the court in submitting to the jury the issue as to whether the death of Charles Champion was caused by the alleged failure on the part of the employees of appellant to keep the constant lookout required. But we are of the opinion that this was a question for the jury under the evidence, and that it was submitted under instructions free from error. Indeed, the instructions in this' respect were more favorable to appellant than the law warranted. The testimony shows that the train crew, who were handling appellant’s cars at the time, were not in position to see the little boy, after he went in front of the cars. There was a curve which prevented the engineer and fireman from seeing; and the switch-man, also, who uncoupled the car, was not in a position to see. The watchman, whose duty it was to guard the crossing and to prevent accidents as far as possible, was too far away to render efficient service in preventing this injury. There was no one on top of the cars to keep a lookout for travellers, who might be in danger of such cars, and to stop them in cases of emergency. These cars, in other words, were uncoupled and left to roll without any one being on them to sound a warning or to arrest their progress, under exigencies calling for such action on the part of the company. The street upon which young Champion was killed was the main thoroughfare leading from the depot to the principal business part of the city, and was constantly travelled, and it was the duty of the appellant to anticipate the necessity of being able to arrest or-stop the progress of its cars, to prevent their coming in contact with any pedestrian using the street at any time. In Inabnett v. St. L., I. M. & S. Ry. Co., 69 Ark. 130" date_filed="1901-03-09" court="Ark." case_name="Inabnett v. St. Louis, Iron Mountain & Southern Railway Co.">69 Ark. 130, we said:
“The duty of railroads is to exercise reasonable and ordinary care to observe travellers about to cross the railroad upon 'the highway. Here the travellers have the right to be and they must be expected to be constantly passing. They are ever present, so to speak, and the railroad employees must exercise that diligence which the law requires to observe them. The care and skill to be reasonable, must be proportioned to the danger and multiplied chances of injury. ’ ’
The law embodied in the lookout statute contemplates that an efficient lookout, commensurate with the danger to be apprehended and avoided, shall be kept. St. L. S. W. Ry. Co. v. Russell, 64 Ark. 239. If this can not be done by the engineer’ and fireman, then -there must be other employees so situated with reference to the moving cars that they will be able to make the lookout effective, for the purpose of preventing injury to persons and property, on the tracks of railways by the running of trains.
Hnder the evidence adduced, it was for the jury to say whether or not appellant was keeping the lookout required by the statute. It was also a question for the jury as to whether or not, if this lookout had been kept, the perilous position of young Champion could have been discovered in time, by the exercise of ordinary care, to have avoided killing him.
There was testimony tending to prove that the cars, were running very slowly. One witness said: “They were, running two or three or four miles an hour, at the time they struck the child.” The car must have been “three or four feet from the child at the time he fell on the track.” Another witness said: “When the car hit him, it turned him over on his back. It kind o’ jogged and almost stopped. If a fellow had been there with a broomstick and presence of mind enough to use it he could have stopped the car. They were not going with any speed at all — just enough to take'them across.”
There was testimony tending to show that the first pair of trucks passed over the little boy without killing him, and, that after the trucks passed over him, “he tried to get out and the rods under the car hit him and knocked him back down toward the east side of the track.”
Now, if there had been some one on top of the cars to have kept a lookout for pedestrians on the street at the crossing, and to have stopped or checked the speed of the cars, in cases of emergency, the deplorable killing of this child might have been avoided. At least, it was a question for the jury.
There was some testimony from which the jury might have found that there was conscious suffering on the part of the child from the time he passed under the car until he was run over by the hind trucks and instantly killed. That also was a jury question.
Upon the whole record, we find no prejudicial error. The judgment is therefore affirmed.