Jones v. St. Louis, Iron Mountain & Southern Railway Co. , 96 Ark. 366 ( 1910 )

McCulloch, C. J.

J. S. Jones was run over and billed by a northbound freight train of the St. Louis, Iron Mountain & Southern Railway Company near Mandeville, in Miller County, Arkansas, and the plaintiff, as administrator of said decedent’s estate, instituted this action to recover damages on account thereof. Jones was walking along the middle of the trade when an engine, approaching from behind, struck him; and it is alleged in the complaint that the company’s employees in charge of the train “saiw the deceased in a dangerous position, and, without any regard for his safety or his life, said defendant’s employees failed to give any signal or any warning to plaintiff’s intestate as to the approach of the train, as was their duty to do, so as to have enabled him to have cleared the trade and secured himself from danger; but the employees in charge of said engine and train, after seeing plaintiff’s intestate, wilfully, maliciously and wantonly rushed the train upon him, without checking the speed of said train or using any appliances under their control to avoid the accident.”

The evidence adduced hy the plaintiff at the trial showed that Jones entered upon the track at a crossing a short distance north of Mandeville, and walked northward along the track. This was about 3 o’clock in the afternoon. The road is double-tracked along there — the east track being used for northbound trains and the west track for southbound trains. He was first on the west track, and was going north, and walked about 150 yards when he saiw a southbound train approaching. He then stepped over to the east track, and proceeded on his journey up that track, and in a very short time he was overtaken and struck by the northbound freight train. According to the testimony of one of the witnesses, he walked about 200 "yards up the east track, and did not look back before the engine struck him. The evidence tended to show that no signals were given from the northbound train, and that it was not slowed down before it struck Jones,,

It is alleged in the complaint, and admitted in the answer, that Jones was “hard of hearing;” but no testimony was introduced on the subject tending to show to what extent his sense of hearing was impaired. The track along there was straight enough for the men on the engine to have seen Jones for a considerable distance ahead if they had been looking, but the only testimony on this subject adduced by plaintiff tended to show that they were not looking forward. The witness who testified on that subject stated that he was standing on one side of the track near the crossing, and that, as the engine passed, he saw the engineer looking to the side over into the woods, and did not see him turn to look forward.

The defendant introduced no testimony, and the court directed the jury to return a verdict in defendant’s favor, which was done.

Did the plaintiff -make a case sufficient to go to the jury?

Jones was a trespasser, and defendant’s servants owed him no duty, except, after the discovery of his perilous position, to exercise ordinary care to avoid injuring him. The burden was on plaintiff to show that the servants in charge of the train saw Jones in a position of peril in time to 'have avoided injuring him, and failed to exercise ordinary care to avoid the injury after discovering his peril. Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522.

A case was not made by showing merely that the men on the engine saw Jones at some time and failed to give signals and slow down the train or stop. It devolved on plaintiff to show that they discovered him in time to have avoided the injury in some way. There is no proof in the record that the men on the engine ever discovered Jones’s presence on the track at all before the injury, but it is insisted by learned counsel that the defendant in its answer admitted that they saw him in a perilous position on the track. Conceding that the answer can be construed to contain such an admission, it certainly denies that defendant’s servants saw him in time to avoid the injury, or failed to exercise care to avoid it. The denials in the answer are as broad as the allegations of the complaint, and put in issue the question whether or not defendant’s servants saw deceased in time to avoid the injury. Even if it was admitted that the men on the engine saw deceased, that was not sufficient to warrant a recovery, as it devolved on plaintiff to show that they saw him in time to have avoided the injury.

We are of the opinion, therefore, that the court did not err in giving a peremptory instruction in favor of defendant, for the plaintiff failed to make out a case, sufficient to go to the jury.

Another error of the court is assigned in refusing, after the plaintiff had rested his case and the court had announced its ruling that a peremptory instruction would be given, to permit the case to be reopened and to allow plaintiff to show by witnesses that some time while the train was standing at the place of the accident the engineer stated that he had seen de* ceased on the track’ some distance ahead of the train before he was struck. Without undertaking to decide whether the proposed testimony was competent or not, we deem it sufficient in disposing of that assignment to say that it was a matter, within the sound discretion of the trial court whether the case should 'be then reopened so as to allow the introduction of further testimony. Brockway v. State, 36 Ark. 629; St. Louis, I. M. & S. Ry. Co. v. Faisst, 68 Ark. 587; Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325. No abuse of the court’s discretion is manifest.

Judgment affirmed. .