115 Ark. 584 | Ark. | 1914
The plaintiff’s intestate, C. B. Ems-lie, while on or near the tracks of the defendant in the city of Little Rock, was struck by a moving train of cars and injured, from which injuries he died a few weeks later, and this is an action by the administrator to recover damages for the benefit of the estate and for the next of kin.
The injury was inflicted by a train of cars being switched along a track which runs through an alley in the city of Little Rock with brick buildings on each side. There are two tracks, and the one on which deceased was injured ran within about two feet of the brick walls of the buildings abutting on the alley. It occurred about 3 o’clock in the morning while it was dark and there were no lights of any kind in the alley. A string of five cars was being backed along the track for the purpose of spotting them at the warehouses where they were to he unloaded, and a brakeman was stationed as look-out near the end of the front car. He had a lantern in his hands and testified that he kept strict lookout for objects on the track and failed to discover anyone until he heard the cries of the deceased after the latter had been struck by the train. The foreman of the .switch crew testified that he walked along the alley a short distance in front of the approaching cars for the purpose of superintending the spotting of the cars and that he did not see anyone in the alley. The other trainmen testified, and it appears from their testimony that a strict lookout was kept for persons on the track and that none was discovered until the distress cries of the deceased were heard when the train was immediately stopped. One of the wheels of the car struck the arm of deceased and pinched the flesh off from wrist to elbow, but no bones were crushed or broken or other injuries inflicted. Deceased was carried to a hospital where his wounded arm was dressed and he remained there until he died. Death resulted from tetanus.
There was no witness who testified that he saw deceased on the track and it is merely a matter of inference or conjecture as to when he went upon the track or the position he occupied. The testimony of the trainmen is to the effect that they did not see him, and the conclusion to be reached from their testimony is that he was lying down on or near the track when the cars were backed into the alley, and that as it was dark at that place the man on lookout could not discover his presence.
There are several exceptions in regard to giving and refusing instructions, but as the judgment must be reversed for the error indicated, we need not pass upon the correctness of those rulings.
Reversed and remanded for a new trial.