Moody v. St. Louis, Iron Mountain & Southern Railway Co. , 95 Ark. 319 ( 1910 )

Battle, J.

This is an action by M. D. Moody, as administrator of W. B'. Moody, deceased, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for the injury and death of the latter, caused by the engine of the defendant pushing four cars against him. After the jury impaneled in the case had heard the evidence adduced by the parties, the court instructed them to return a verdict in favor of the defendant, which they did, and plaintiff appealed. '

On the 7th of March, 1908, W. B. Moody arrived at Bald Knob, in this State, on board of a train of the defendant on a visit to his son, who resided at that place about a quartet of a mile from the depot. He undertook to walk to his son’s residence. On his way lay the main railway and five switches of the defendant. Between what is called the main and passing lines was a pathway' on which he, in part, undertook to go to his son’s. The train on which he had arrived, and an engine with four cars in front of it, were moving on one or more of these tracks ’preparing to depart. After the passenger train had passed him, without looking or listening, he stepped on the main line, and soon the engine, pushing four cars in front of it and moving at the rate of three miles an hour, struck him, inflicting severe injuries. The engine and four cars were in plain view, and there was nothing between him and them to obstruct his view. The switches there were sufficient to put him on his guard against more than one engine. There was no necessity for him to walk upon the railway track; the path between the tracks furnished a safe and sufficient footway for that time and occasion. He was guilty of contributory negligence. There was no evidence that the trainmen actually discovered his peril in time to avoid injuring him. He is not entitled to recover damages. Tucka v. St. Louis, I. M. & S. Ry. Co., ante p. 190, and cases cited.

Judgment affirmed.