83 Ark. 61 | Ark. | 1907
(after stating the facts.)
1. The first question presented is as to the right of a foreign administrator to maintain such an action in this State. This is an action founded upon Lord Campbell’s Act, sections 6289 and 6290 of Kirby’s Digest. The argument is made that a foreign administrator can recover in .this State only for sums which would be assets for the payment of debts, and Fairchild v. Hagel, 54 Ark. 61, is relied upon. But that decision can not be taken to mean anything beyond the law as applied to the facts therein. It was dealing with a foreign administrator seeking to recover lands in this State, and what was said of that action was ‘well said; but the decision does not apply to a state of facts where recovery is sought in a personal action by a foreign administrator for .the benefit of the next of kin. The administrator in the Hagel case could not recover because an Arkansas administrator bringing a similar suit could not have recovered. The statute gave .the foreign administrator no greater power than the home administrator, but did give him the same power to maintain suit. This question was fully considered by the Supreme Court of the United States in the case of Dennick v. Railroad, 103 U. S. 11. While there is some difference in the adjudications on this subject, the reasoning of Mrs Justice Miller, speaking for the court in that case, presents the better position. It was likewise held in the St. Louis, 1. M. & S. Ry. Co. v. Cleere, 76 Ark. 377, that a foreign administrator could sue and recover under Lord Campbell's Act for injury in this State. It is true that that point was no.t pressed in argument, nor specifically considered by the court, but it was necessarily involved in the question which was considered: that is, whether the marriage of a foreign administratrix terminated her right as administratrix to maintain suit in the State.
2. It is insisted that there was no evidence of negligence of the appellant, and that the court erred in submitting -that question to the jury. The evidence that Luhrsen was killed by the running of a train gave rise to a presumption of negligence against the railroad company, casting upon it the burden to establish that constant lookout was kept; and the court so instructed the jury in the 7th instruction. This question was recently fully examined by this court in a case similar to this one, St. Louis, I. M. & S. Ry. Co. v. Standifer, 81 Ark. 276.
This lookout must be kept in the yards of the company as well as on other parts of the track, and is for the benefit of employees of the company as well as others. Little Rock & Hot Springs W. Rd. Co. v. McQueeney, 78 Ark. 22; Kansas City S. Ry. Co. v. Morris, 80 Ark. 528.
The evidence on behalf of appellant is not sufficient for the court -to say as a matter of law that this presumption is overcome, even if there were no evidence on behalf of appellee tending to establish negligence. The testimony of appellant is that there was a brakeman posted on the tender with a lantern, which cast its rays not exceeding thirty feet, and that, owing to such light, he could not have seen beyond that distance, and that the train running at the speed at which it was running could not have been stopped short of fifty-five or sixty feet. This evidence on behalf of appellant alone presented a question of fact to the jury as to whether an efficient lookout was being kept. If the operatives of the train circumscribe the vision of the lookout watchman by a lantern, and do not run its trains so slowly that it could stop within the vision of the watchman, then a question of fact is presented as to whether or not the lookout statute has been violated.
The evidence of appellee likewise presented a question -for the consideration of the jury, as to whether the appellant was guilty of negligence. Mr. Carter testified that he and his companion could have been seen in their velocipede for 250 feet before they were struck, by a man of ordinary vision, without any light, and if there was an ordinary headlight they ¡could have seen 400 feet. The court sent this question to the jury under proper instruction — number 2 — which is set out in the margin.
3. The question of the contributory negligence of Luhrsen is more difficult than the question of the negligence of the railroad company. According to the testimony most' favorable to Luhrsen, the train was seen by his companion when it was only seventy-five or a hundred feet distant, whereas it could have been seen for a distance of 250 or 400 feet. If the train was running at the high rate of speed that some of the testimony indicates, the time consumed in running from the point where it could have been seen to the point where it was seen would have been but a very few seconds. And the failure to constantly watch would have been limited to an exceedingly short period of time. If the. train was running only six or eight miles an hour, as the trainmen’s testimony indicates, it was running but little faster than the velocipede; and six miles was the company’s. limit for running in the yards. Therefore, it is reasonable that Luhrsen and Carter were not expecting danger from being overtaken by this switch engine in the yards, and they were expecting a passenger train soon from the north and their attention was most sharply directed to it. While this court hás said many times, and can not repeat it too often, that it is the absolute duty of a person on a railroad track to keep a constant lookout both ways, yet it is physically impossible to be looking both ways at the same instant, and a man can reasonably be permitted to pay closer attention to the point from which danger is expected "than to the other; however, never to the extent of relaxing attention from the other direction fufther than necessary to give the required attention to the direction of most imminent danger. This subject was fully considered in St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 78 Ark. 251, and again in Chicago, Oklahoma & Gulf Ry. Co. v. Baskins, 78 Ark. 355. Other applications of it are found in St. Louis, I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520; Scott v. St. Louis, I. M. & S. Ry. Co., 79 Ark. 137; St. Louis & S. F. Rd. Co. v. Wyatt, 79 Ark. 241.
It was proper for the'question of contributory negligence to be submitted to the jury, and it was properly submitted.
4. Criticisms are made of some of the instructions, in that they seem to permit a recovery if the jury find the defendant guilty of negligence, without'the qualification “and unless they find the deceased not guilty of contributory negligence.” Taking these instructions as a whole, the court think they make it clear to the jury that contributory negligence on the part of deceased would defeat a recovery, even should they find the defendant guilty of negligence. It is generally impossible to state all the law of the case in one instruction: and if the various instructions separately present every phase of it as a harmonious whole, there is no error in each instruction failing to carry qualifications which are explained in others. Brinkley Car Works v. Cooper, 75 Ark. 325; St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 224; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458.
5. Exception is taken to the sixth instruction on the measure .of damages. The instruction is as follows: “6. If, under the evidence and instructions in this case, the jury find for the plaintiff under the first count in the complaint, they will return a verdict in favor of the plaintiff for the benefit of the father of the deceased for such sum of money as they believe the defendant would, under the testimony, have given or paid said father or laid out and expended for his benefit, had the deceased not been killed.” The objection is that the evidence shows that the son expected to repay his father for the sums expended on his education from his earnings, and necessarily such payments would be in instalments and likely run over several years: and this instruction contemplates the entire sum which would be repaid, without taking into consideration the present value of the deferred instalments. The instruction in general terms is correct, but in vi-ew of the evidence, which would indicate that the payments would run over quite a period in the future, it should have been explained that the present value of such deferred payments, and not the entire sum of the payments, should be found. Had appellant called the attention of the lower court to the evidence in this regard and asked such explanation of the instruction, it doubtless would have been given. The court does not think that it is a reversible err.or to have given an instruction which is in general terms accurate but which lacked an explanation fitted to the facts to make it entirely accurate in this instance, if an explanation was not requested in the lower court, and the attention of the trial court not called to the evidence requiring the explanation. Of course, it would have been different if the instruction was in itself erroneous. But it is not abstractly wrong. There is no indication that the jury was misled by it, because the verdict is less than the evidence would have justified the jury in giving.
Judgment affirmed.
“*2. The law contemplates an efficient and watchful lookout, and not one which is' merely perfunctory. A lookout who does not see what with due care could have been seen would not be in the proper discharge of his duty, and not the constant lookout contemplated by law. If, therefore, the jury believe that at the time of the alleged killing, the defendant was not keeping such lookout, or was maintaining a lookout who did not see the deceased when and as soon as with due care he should have been seen by 'such lookout, and thereby the deceased was killed by the train, the- engine or tender of the defendant when in motion, then was the defendant guilty of negligence.”
