| Ark. | Nov 7, 1896
(after stating the facts.) In this action damages are sought for an injury to Imogene Denty, a child, four years of age. She was struck by a train while attempting to cross the track of appellant’s railway at a public crossing in a small village or hamlet called “Donaldson.” A consideration of the evidence convinces us that the case turns on the question whether the employees in charge of the train could have avoided the injury by keeping a proper lookout, and also whether that question was properly presented to the jury. It is true there is conflict in the evidence as to whether the signals for the crossing, where the injury occurred, were given by the trainmen as required by the statute, and the presiding judge instructed the jury that they should find for the plaintiff if they believed that the injury was occasioned by the failure to give such signals. But it seems plain that the failure to give such signals, if proved, had no causal connection with the injury complained of. Mrs. Riley, the grandmother of Imogene, a lady sixty-four years of age, with whom Imogene was wralking at the time, saw the train before she had got to the main track of the railway upon which tlae train was approaching-. She stopped with Imogene on the side track, and out of danger from the train. There is nothing in the evidence to justify a finding that, had she heard the signals, she would have stopped before she did, or that she would have occupied a safer position while the train was passing. The failure' to give the signals did not cause her to come within dangerous proximity to the train, nor was the injury caused by the position in which she and Imogene stood. It was occasioned by the fact that Imogene suddenly broke away from her grandmother and attempted to cross the track. With this act the failure to ring the bell had no connection, for Imogene was too young to understand the meaning of such signals had they been given. We therefore think it was improper to instruct the jury that they should find for the plaintiff if they believed that the injury was occasioned by the failure to give the statutory signals required for crossings. There was no evidence upon which'to base such an instruction, and it was likely to mislead the jury. Railway Co. v. Roberts, 56 Ark. 387" date_filed="1892-06-18" court="Ark." case_name="Railway Co. v. Roberts">56 Ark. 387.
The instructions also permitted the jury to decide whether the speed of the train was unreasonable or not. But we think that it was not negligence for the railway company to run its regular passenger train past a way station at the rate of thirty miles an hour, when the track near the station is straight, so the train could be seen some distance away, and the train is run on schedule time.
It is necessary for public convenience that passenger trains should make fast time. The people at the station had reason to expect the approach of the train, for it was running on its regular schedule time, and at its usual speed. The track was straight, and the train could be seen some distance away. There was, in our opinion, nothing- to justify a finding that such speed was unreasonable, and we think it was improper to sub.mit that question to the jury for determination. Tobias v. Michigan Central Railroad Co., 103 Mich. 330" date_filed="1894-12-22" court="Mich." case_name="Tobias v. Michigan Central Railroad">103 Mich. 330, 61 N. W. 514.
From the instructions given, we do not know that the verdict of the jury was not based on a finding that the speed of the train was unreasonable, or on a finding that the failure to give the statutory signals for the crossing was the proximate cause of the injury, for these questions were submitted to the jury by the instructions. It is true that the circuit judge said to the jury that not every act of negligence on the part of defendant would make it responsible, but only such negligence qs caused the injury. This was sound law, but it was only a statement of a general proposition. He was then asked to apply the law to the facts of this case by a special instruction to the jury that if the child “broke loose from its grandmother, and so suddenly ran upon the track that the trainmen could not have seen it, or become aware of its danger, in time to have avoided injuring it,” they should find for the defendant; but he refused to do so, and modified the instruction by adding thereto, the words, “unless you further find that defendant was guilty of negligence that caused the injury.” As there was no other negligence upon which a finding in favor of plaintiff could be based except the failure to keep a proper lookout, this modification of the instruction was improper and prejudicial. Railway Co. v. Roberts, 56 Ark. 387" date_filed="1892-06-18" court="Ark." case_name="Railway Co. v. Roberts">56 Ark. 387.
Por the reasons above given the judgment of the circuit court must be reversed, but we are asked to go further, and hold that the facts in proof do not make out a case sufficient to go to the jury.
With this contention we cannot agree. While we have said that propelling1 the train over the crossing- at a speed of thirty miles an hour was not of itself negligence, yet, when a train is run at such speed over a public crossingin a town, village, or hamlet, increased vigi-lence is demanded on the part of the persons having charge of such train, to the end that needless injuries to persons and property may be avoided. Our statute places the burden in cases of this kind upon the railroad company to show that a proper lookout was kept. Sand. & H. Dig., sec. 6207.
The evidence in this case does not so conclusively show that the employees in charge of the train exercised the vigilance and care required by the law under such circumstances as to justify the court in withdrawing the case from the jury. It is admitted that the fireman was not keeping a lookout. The engineer testifies that he was keeping a lookout, but either from his position or from some other cause this lookout was not sufficient.
Mrs. Riley and her granddaughter were standing on the side track, in plain view of the approaching train, and might have been seen had the careful lookout required in such cases been kept. But neither the engineer nor the fireman saw them until after the child was struck by the engine. It is no excuse for this failure to say that Mrs. Riley and the child were on the side next to the fireman, and that he was putting coal in the engine. The train was passing at a high rate of speed over a crossing- in a village, and ordinary care required that the fireman or some other employee should have kept a lookout along the track, so that the persons about to approach the track from that side could be seen. St. L. S. W. Ry. Co. v. Russell, 62 Ark. 182" date_filed="1896-03-21" court="Ark." case_name="St. Louis Southwestern Railway Co. v. Russell">62 Ark. 182; Railway Co. v. Lewis, 60 Ark. 416.
The failure of the company to keep a lookout would not excuse an adult person who carelessly sat or stood upon the track and' allowed a train to strike him. Under the previous decisions of this court, such a person could not recover; but with an infant four years of age the rule is different. A child of that age does not possess sufficient discretion to be adjudged guilty of negligence; and if the employees of the company in charge of the train were guilty of carelessness causing injury, the company must respond in damages. St. L. S. W. Ry. Co. v. Dingman, 62 Ark. 253.
The negligence of the parent or other person having custody of the child will not in such cases be imputed to the child. Railway Co. v. Rexroad, 59 Ark. 180" date_filed="1894-05-26" court="Ark." case_name="Railway Co. v. Rexroad">59 Ark. 180.
Had a proper lookout been kept, the danger to this child might have been discovered at the time it broke away from its grandmother. While there is conflict in the testimony on this point, yet there is evidence that the child ran about fifteen feet after it broke away from its grandmother before it was struck by the engine. When struck it had nearly crossed the track. Some of the witnesses say was just stepping from the last rail. In an instant more it might have been out of danger. The speed of a train running at the rate of thirty miles an hour must be many times faster than a child only four years of age can -run. The train then was much farther than the child from the point of collision' at the time the child started across the track. Several of the witnesses testify that the appearance of Mrs. Riley, as she approached the track holding the child by the hand, with a sun bonnet covering the sides of her face and without turning her head to look, indicated that she did not see the train until she had got to the side track. Had the persons in charge of the train seen them, and been on the alert, prepared to act on the instant the child broke away from her, we are not prepared to say that the injury might not have been avoided. We feel by no means certain that it could have been avoided; but whether it could have been avoided by due diligence in keeping a lookout, and by acting on the first indications of danger, is a proper question for a jury to determine.
We have not set out the instructions given, for the reason that the error complained of is not in the instructions, abstractly considered, but in submitting to the jury issues upon which there was no evidence to support a finding. Railway Co. v. Roberts, 56 Ark. 387" date_filed="1892-06-18" court="Ark." case_name="Railway Co. v. Roberts">56 Ark. 387; Gibbons v. Wisconsin Valley R. Co., 62 Wis. 546" date_filed="1885-03-03" court="Wis." case_name="Gibbons v. Wisconsin Valley Railroad">62 Wis. 546; 2 Thompson, Trials, sec. 2319.
The presiding judge, in his instructions on the measure of damages, told the jury that plaintiff could recover for future pain and suffering if it was reasonable to believe from the evidence that she must suffer in the future as the result of her injuries. This was a correct statement of the law, but the testimony of the two physicians, who alone testified on this point, seems rather to the effect that the child had fully recovered. As the case must be retried, we mention this for the reason that we are not certain that the evidence on this point, as it appears in the transcript, was sufficient to sustain a finding for prospective damages.
For the errors indicated, the- judgment is reversed, and cause remanded for'new trial.