Missouri Pacific Railroad Co. v. Grady

STATEMENT BY THE COURT.

This appeal is prosecuted from a judgment for damages for the wrongful death of administratrix's decedent, Robert Grady, alleged to have been caused by the negligence of appellant in failing to keep a lookout and avoid injury to decedent, a trespasser on its railroad track.

Robert Grady was about 30 years of age, in good health and physical condition engaged in farming and trading and as a day laborer with an earning capacity of about $1,200 per year, virtually all of which was contributed to the support of his wife and aged mother, who was entirely dependent on him, contributing approximately $100 of his earnings to her and the remainder to his wife. He resided at Caldwell, Arkansas, some miles from Forrest City, and was in Forrest City on business on Saturday, and on that night started walking back to his home along the tracks of appellant and about a quarter of a mile north of the water tank on the right-of-way sat down on the track and was struck by one of the appellant's trains operating on said track between the hours of 8 P.M. and 4 A.M.

It was alleged that appellant's engineer and fireman operating said northbound train saw, or by the exercise of the statutory duty to keep a lookout could have seen, the decedent on the track in time to have avoided striking him. That the roadbed of appellant for a long distance north and south of the water tank is straight and unobstructed; that appellant, its agents and servants, were negligent and careless in the operation of the train and struck the decedent and knocked or dragged his body for some 75 to 100 yards mangling and mutilating it almost beyond recognition and left the body with its face down between the rails of the track, not discovering the death caused by the negligent act of the said employees or reporting it upon arrival at the next station.

The testimony shows that decedent was walking along the track toward his home from Forrest City when he was struck by one of appellant's trains and knocked or dragged about 100 to 150 yards the top of his head being crushed off and his face mutilated almost beyond recognition and otherwise broken and mangled; that blood and brains and fragments of flesh and clothing were found along the ends of the ties where the body had been dragged.

There was an attempt to show that the body had two incised wounds as though made with a knife one on the inside of the collar bone in the neck and one near the nipple on the right side of the chest. One of the coroner's jury that held the inquest to determine the cause of death stated that he examined the body carefully and did not see anything that indicated a knife wound. Other witnesses testified that the wounds appeared to be made by a cutting instrument, while still other witnesses said it was jagged as though made when the body was dragged along the ties. The coroner said that several men were of the opinion that they might be knife wounds or some other kind of wounds; said he did not see much blood anywhere except on the rails near where the body was found. The health officer said he made an examination of the body and discovered two wounds he thought had been made by a knife or sharp instrument, one in the breast and the other on the neck; that the wound in the neck was pretty deep, but the one in the chest was not very deep, did not go to the hollow. The wound in the chest would not have had much effect, but the one in the neck would probably have produced death as it would have severed the big blood vessel, and the patient would have died from a hemorrhage in a short time. He couldn't say that the arteries were severed as he didn't go that far in. To the question: "Well, what caused his death?" he answered: "By the head being mashed off and the cut together."

The enginemen testified that they were keeping a lookout but did not see the decedent on the track or know that they had struck and killed any one or struck anything, and on that account made no report of it at the next station.

The court instructed the jury, and from the judgment against the appellant this appeal is prosecuted. (after stating the facts). It is insisted that the testimony is insufficient to support the verdict or to show any negligence in failing to keep a lookout or that the injury was caused by the operation of the train.

The undisputed testimony shows that the place where the injury occurred was on a straight stretch of track 3 or 4 miles long and unobstructed in any way from the place where the decedent appeared to have been struck by the train to far beyond where the body was found lying between the rails on the track badly mangled and torn. That both engines and trains that passed by the place where the injury occurred between the time deceased was seen walking on the track and the discovery of the body the next morning were equipped with strong head lights in good condition that cast a beam of light 800 to 1,000 feet ahead, and that either train could have been stopped in 600 feet at the rate of speed that they were going if they had discovered the peril of decedent. The enginemen both testified that a constant lookout was kept, that they did not discover him or his perilous position without any explanation tending to show why it could not have been done and the fact remains that the man was killed on the railroad track, all of the surrounding circumstances indicating that he was struck while walking on the track, knocked forward and dragged by the train from 50 to 100 yards along the track, blood, brains and fragments of flesh and clothing being scattered all along to where the body was found. The top of his head was mashed off, and the body was otherwise mutilated, one leg being gone and his clothing almost all torn off. There was no considerable amount of blood found anywhere along the right-of-way, except near where the body lay when found although it was splashed all along with brains and fragments of flesh and clothing from the place where the circumstances indicate he was first struck by the train. There was no effort made by any of the officers to investigate whether the death had been caused by any one else other than the railroad company, and there was no general belief aroused, so far as the testimony shows, that such was the case.

There is no merit in the contention that the testimony is insufficient to support the verdict nor that the death was caused other than by the operation of the railroad train, and under the circumstances herein the jury was warranted in inferring that such was the case and because of the failure of appellant's operatives of the train to keep the lookout as required by the statute and prevent injury to a trespasser even when his perilous position could have been discovered and the injury prevented by the exercise of such ordinary care as the law, 8568, Crawford Moses' Digest, required under such circumstances. St. Louis, I. M. S. Ry. Co. v. Gibson,107 Ark. 431, 155 S.W. 510; St. Louis-S. F. Ry. Co. v. Crick, 182 Ark. 312, 32 S.W.2d 815; Chicago, R.I. P. Ry. Co. v. Cook, 187 Ark. 914, 63 S.W.2d 341.

The testimony introduced attempting to show that the decedent might have been killed by being stabbed and put on the track of the railroad company where he was struck and run over is not sufficient to raise a doubt about how the death occurred. There was no considerable amount of blood found anywhere to indicate such bleeding as would necessarily have resulted from the severance of the arteries except the blood found in the immediate vicinity of the mangled and torn body, which would not have been discovered there so far from where the circumstances showed the train struck decedent, nor at all if he had been killed somewhere else and the body placed on the tracks where it was struck by the train. It is understood that dead bodies do not bleed profusely.

We find no error in the record, and the judgment is affirmed.