| Ark. | Mar 31, 1913
(after stating the facts.) Instruction numbered 1 is erroneous and was prejudicial. This court has frequently held that when the damage to property is shown to have been caused by the operation of trains coming in contact with it, that a prima facie case of negligence is made against the railroad company.
In Green v. St. Louis, I. M. & S. Ry. Co., 99 Ark. 228, the court said:
“It is true that, in suits against a railroad company for the recovery of damages done to property by the running of its trains, the burden of proof of showing due care upon its part is cast upon the railroad company by virtue of the statute of this State making railroad companies responsible for all damages done or caused by the running of their trains.” (Citing cases.)
It has likewise been held that proof of the injury to a person at road crossings or in the street, where he had the right to be, by the operation of a railroad train, is prima facie evidence of negligence on the part of the railroad company. Little Rock & F. S. Ry. Co. v. Blewitt, 65 Ark. 237; St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 638.
But the court has invariably held that no such presumption arises in case of an injury to a trespasser by the operation of railroad trains and that the burden of proof in. such cases devolves upon the plaintiff to show in order to recover damages for the injury that the employees in charge of the train discovered his perilous position in time to have avoided injuring him and negligently failed to use proper means to avoid injuring him after discovering his peril. St. Louis, I. M. & S. Ry. Co. v. Watson, 97 Ark. 560" date_filed="1911-02-13" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co v. Watson">97 Ark. 560; Jones v. St. Louis, I. M. & S. Ry. Co., 96 Ark. 370; Chicago, I. T. & P. Ry. Co. v. Bunch, 82 Ark. 522" date_filed="1907-05-06" court="Ark." case_name="Chicago, Rock Island & Pacific Railway Co. v. Bunch">82 Ark. 522.
Nevertheless, it is contended that under the lookout statute of May 26, 1911, appellee was entitled to said instruction and' also instruction numbered 3, as given;
The first section of that act provides:
“It shall be- the duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employees of any railroad to keep such lookout, the company owning or operating any such railroad shall be hable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured, in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed. ’ ’
This statute is an amendment to section 6607 of Kirby’s Digest, our first statute requiring a lookout to be kept by the operatives of a railroad train, which was enacted to avoid the effect of certain of the court’s decisions, relative to the liability of railroad companies for injuries caused by the operation of their trains. The court construing it held that it did not affect the defense of contributory negligence in the case of a trespasser and that it was not its purpose to abolish the rule of contributory negligence in such cases.
In St. Louis S. W. Ry. Co. v. Dingman, 62 Ark. 252, the court said: “It simply requires the employees in charge of trains to keep a lookout, and provides that the railroad company shall be liable for all damages resulting from the failure to keep such lookout.”
In St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 238, the court said: “In our opinion it makes the failure to keep a constant lookout by the employees of a railroad company negligence, and puts the burden upon the railroad company to establish the fact that it has kept such lookout. This is the extent of the change made in the law by this statute, which, in our opinion, does not, in such cases as this, abrogate the doctrine of contributory negligence. ’ ’
In the Dingman case the court, after stating the rule before the act, said: “But now the company is liable if, by proper care and watchfulness, it could have discovered and avoided the danger.*’
Now this last act provides the railroad company Shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee, or employees, in charge of such train could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery and the burden of proof devolves upon the railroad company to establish the fact that the duty to keep the lookout has been performed as in the first act. It was the evident purpose of this act to provide a different rule of liability against a railroad company causing an injury by the operation of its trains in case of failure to keep a lookout for persons on its track than was prescribed by the old act, which required the same lookout to be kept, and placed the burden of proof upon the railroad company in case of an injury to establish the fact that the duty to keep a lookout had been performed. It was not intended, however, that upon proof of the killing of a trespasser by the operation of a train that the presumption should arise that the killing was negligent and the plaintiff entitled to recover damages without showing anything further, and casting the burden of proof upon the company to show that it was not guilty of any negligence, causing the death, as declared in said instruction numbered 1.
Before the adoption of the amended act, the raUroad company was only liable to the payment of damages for the injury to a trespasser in case it discovered his perilous position in time to have avoided the injury, and failed to nse reasonable care to prevent sncb injury after sueb discovery, and the burden of proof to show these facts was upon the one seeking a recovery for the injury. If it had been the intention to make the railroad company liable by the passage of this statute, prima facie, for all injuries to persons upon the tracks, unless it could show that it kept a proper lookout and did not discover the person injured in time to have avoided the injury, and after discovering his perilous position used all reasonable care to avoid the injury, it would have been easy enough to have said so and required different language to provide such rule.
In Central Railway Co. v. Lindley, 105 Ark. 294" date_filed="1912-11-18" court="Ark." case_name="Central Railway Co. v. Lindley">105 Ark. 294, 151 S. W. 246, a case of an injuiy to horses, not by the train striking them, but by frightening them in its operation and causing them to jump into a trestle, the court, construing this lookout statute, said:
“In other words, the statute makes it the duty of the railroad companies to keep a. lookout for property upon its tracks, and makes it liable for all injuries that occur by reason of its failure to perform this duty. Under the lookout statute, when the plaintiff has proved facts and circumstances, from which the jury might infer that his property had been injured on account of the operation of the train and that the danger might have been discovered and the injury avoided if a lookout had been kept, then he has made out a prima facie case, and the burden is on the defendant to show that a lookout was kept, as required by the statute.”
Before its passage, it had only been held that a prima facie case of negligence was made out against the railroad company on proof of injury to the animal by the operation of a train, by actually coming into contact with it, and the rule in this respect is not changed by the statute. "We think the construction there placed upon the act applies to persons alike and that the railroad company now owes the same duty to keep a lookout to avoid injuring the trespasser upon its tracks, and that upon proof of injury to such person by the operation of its trains under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout, had been kept, that a prima facie case is made and the- burden of proof then devolves upon the railroad company to show that a proper lookout was kept as required by the statute and that it used ordinary care to prevent the injury to the person after his discovery in a perilous position in order to escape liability for such injury.
Instruction numbered 3 should not have declared that the failure to keep a constant lookout or to exercise ordinary care to avoid injuring deceased after his peril had been discovered, rises to the grade of wanton or reckless conduct. The statute declares the duty and it was sufficiently brought to the jury’s attention, without such expression, which could not assist them in arriving at a proper verdict.
Instruction numbered 7, relative to the measure of damages, is erroneous, under the pleadings; the loss of parental care and training to the minor children, not having been alleged as an element of damages in the complaint. Helena Hardwood Lbr. Co. v. Maynard, 99 Ark. 377" date_filed="1911-05-29" court="Ark." case_name="Helena Hardwood Lumber Co. v. Maynard">99 Ark. 377; St. Louis, I. M. & S. Ry. Co. v. Sweet, 57 Ark. 287" date_filed="1893-02-11" court="Ark." case_name="Railway Co. v. Sweet">57 Ark. 287.
For the errors indicated, the judgment is reversed and the cause remanded for a new trial.