61 Ark. 617 | Ark. | 1896
(after stating the facts). It was held by this court in Railway Co. v. Ross, 56 Ark. 271, under evidence substantially the same as we have here, that the deceased, Ross, was guilty of contributory negligence, and that the defendant company was not liable for his death.
After again considering the evidence, we adhere to the conclusion arrived at in that case. It is contended that the employees of the railway company discovered the dangerous position of Ross in time to have avoided the injury; that they negligently failed to do so, and that for this reason the appellant is liable, notwithstanding the contributory negligence of the deceased. The evidence tends to show that one of the brakemen noticed the danger to which Ross was exposed, and that he attempted to signal the engineer to stop the engine, but this brakeman was not upon the engine, and had no control over it, except by signals, which he tried to give. There is nothing to show that either tbe engineer or fireman in charge of the engine had any knowledge of the danger to which Ross was exposed until after he was struck by the engine. The engineer may have been negligent in failing to keep a lookout and to observe signals, but, as the deceased was himself guilty of negligence directly contributing to his injury by stepping upon the railway track close to a moving engine, which was in plain view, the company is not responsible for his death.
The contributory negligence of Ross is a sufficient defense against the negligence of the engineer in failing to discover the dangerous position in which Ross had suddenly and through inattention placed himself. Had the employees .of the company discovered the danger of Ross in time to have avoided the injury by the use of proper care, they should have done so; but they had no notice that Ross would thus expose himself, and the company is not liable for the failure of its employees to discover a danger to which Ross was exposed by his own negligence. Little Rock, &c., R. Co. v. Pankhurst, 36 Ark. 377; St. Louis, &c., R. Co. v. Freeman, id. 46; Little Rock, &c., R. Co. v. Cavenesse, 48 id. 129; Bauer v. Railway Co. 46 id. 399; St. Louis, &c., R. Co. v. Wilkerson, id. 522; St. Louis, &c., R. Co. v. Monday, 49 Ark. 263.
Counsel for appellee have discussed the different questions in this case in an able and admirable brief. We have given it careful attention, but we remain of the opinion that the evidence, looked at from the point of view most favorable to appellee, does not make out a case against the railway company. In our opinion the death of Ross was due, not to the fault of the employees of the railway company, but to an accident such as may at times be brought upon one by even a moment’s inattention, while standing upon a railway track. We think that the circuit court should have directed a verdict for the defendant. Catlett v. Railway Co. 57 Ark. 461. As the facts in the case seem to have been fully developed, it would be of no benefit to prolong this litigation. The judgment of the circuit court is reversed, and the case dismissed.