Memphis, Dallas & Gulf Railroad v. Buckley

Wood, J., (after stating the facts). Appellee’s expectancy was 26 years. The deceased was 20 years, of age; lived with' appellee, who was his mother. He was deaf, but otherwise unafflicted. He was the eldest of those living with his mother. He knew how to farm, and his mother depended upon him, as the other boys were younger and smaller. He helped to malee the crops, and when through with that work would hire out. His wages would sometimes he from a dollar and a half to two dollars per day, and he would_ bring his money home and spend it for his own clothing and for the benefit of the family. He told his mother that he never expected to marry, but was going to remain with her. He was shown to have 'been industrious; one of the witnesses (a farmer) testifying that he never had a better boy to work for him, that he was a good hand, and that whenever there was any business to look after for his (decedent’s) mother the decedent attended to it for her. The jury were warranted, from this evidence, in returning a verdict in favor of appellee in her own right in the sum of $2,500. Under the circumstances, it is reasonably certain that, had decedent lived, and, should his mother, the appellee, live to the full term of her ex-pecta-ncy, she would have realized more than -the sum of $2,500 out of the contributions of -her son. The decedent had an affection for his mother, and expressed the determination to remain with her. He was a good worker, and doubtless his earning capacity would have increased with experience of the years as they advanced, and therefore we are of the opinion that the judgment for the above sunn is not excessive. Railway Co. v. Davis, 55 Ark. 462; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333. On behalf of appellee, the evidence tended to show that the engineer in charge of the engine discovered the decedent walking on the track something near 1700 feet ahead of the engine; that the engineer sounded the whistle and continued to sound the same, but that decedent did not look around and gave no indications that he knew that -the train was following him, and, notwithstanding this fact, the engineer made no effort to stop the train or to slacken its speed until it was too late to avoid the injury; that when the engineer did finally put on the air and shut off the steam it was impossible to stop the train until it had struck the decedent; that the train was something like 150 feet in length, consisting of the engine and tender, or tank, and two coaches; that the train was stopped that morning after the air was put on in something like 5^ or 6 rail lengths, or a distance of about 150 feet; that a train of this size, and running at the speed that this train was running on that day could have been stopped in about the distance it was stopped. There was testimony to the effect that the air-brake could have been put in operation instantly, as the witness expressed it, “at the bat of the eye.” The shortest distance that the decedent was discovered by the engineer, according to -the testimony on behalf of appellee, was not less than 951 feet. The evidence on behalf of appellee tended to -show further that the body of decedent was lying near the rear end ot the back coach, the train had not passed him, it was some 16 or 18 feet .from the back of the coach. One witness testified that he was fireman on the train that morning, and that when the engineer first gave the alarm he looked up and saw the deceased right in the center of the track; that he watched him all the time, never taking his eyes off of him; that the deceased kept right down the middle of -the track, and did not turn around and look back; that the decedent did not start from one side of the track to the other. On behalf of appellant, the evidence tended to prove that the engineer sounded the alarm as soon as he discovered the decedent on the track, giving four blasts of the whistle, and that when this was done the decedent turned as if he were looking •backward over his shoulder and bore to the left of the center of the track as if he would step off, but looked around and got back in the middle of the track; then the engineer blew the whistle again, giving 'the stock alarm; that the decedent paid no attention to this, and then the engineer put the air on in the emergency, reversed the engine and gave the rail sand, still blowing the whistle. The engineer, in his testimony, said that the reason he did not get the train under control, so that he could stop it before running over the decedent, was that he did not think it necessary. In other words, he thought, when he gave the alarm for the decedent to get out of the way, he'would do so. If he had known that the decedent -was not going to get off the track, he could and would have stopped the train 'when he first saw him. He would have only lost a minute in doing this. This testimony on behalf of the appellee and of the appellant made it a jury question as to whether or not the appellant exercised ordinary care, after discovering the perilous situation of the decedent, to avoid injuring him. The testimony is conflicting as to whether or not the decedent gave any indications by his conduct that he had discovered the approach of the train. The jury might have found that the decedent was oblivious to the approach of the train. This is the most natural and reasonable conclusion. For, if he had discovered it, he could and doubtless would have easily stepped from the track. Therefore, the jury were fully justified in accepting the testimony on behalf of appellee to this point and in rejecting that on behalf of appellant. The court properly submitted the question as to whether apjpellant was negligent after discovering the peril of the decedent. The law on this subject has been announced in numerous decisions of this court, and it is unnecessary to repeat what we have so often said. St. Louis, I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 513; Sibley v. Ratliffe, 50 Ark. 477; St. Louis S. W. Ry. Co. v. Thompson, 89 Ark. 496; St. Louis S. W. Ry. Co. v. Jackson, 91 Ark. 16. The instructions of the court were in conformity with the law as announced in the above cases, and no useful purpose could be subserved in discussing in detail the various pikers for instructions given and refused. The court did not err in ruling that contributory negligence was not a defense in cases of this kind. We find no reason for the reversal of the judgment. It is therefore affirmed.