Burch v. St. Louis, Iron Mountain & Southern Railway Co.

Kirby, J., (after stating the facts). Without regard to whether he was'a trespasser or a licensee upon its tracks, the railroad company owed the deceased the duty to keep a constant lookout to avoid injuring him, and his contributory negligence would not excuse its failure to discharge this duty, where if such lookout had been kept, his perilous position could' have been discovered in time to háve prevented the injury by the exercise of ordinary care. Acts 1911, p. 275; St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. (Ark.) 510. The undisputed testimony shows that the tracks at the' place of the injury were straight and unobstructed in any way from north of the Frisco crossing, where the,, engine was placing the coaches on the switch track, to the place-.where the injury occurred. A man upon the engine keeping a lookout could have easily discovered deceased upon the speeder on the track before running him down. The testimony is in conflict as to whether the wind was blowing and it was raining at the time as the helper said it was, making it necessary for him to keep his head down, in order to keep his hat on, which caused his failure to see the deceased and it is also in conflict as to the time' the deceased got on the track and the distance from the engine at the time of getting'on the track, and, under all the circumstances of the case, the jury could have found that a proper lookout might .have discovered deceased’s perilous position in time to have avoided injuring him, by the exercise of .ordinary care. ' ' ' Whether, under the circumstances as detailed, the railroad company’s employees exercised that degree of care in keeping the lookout required by law, was a question properly for the jury. Several witnesses thought deceased had time to jump or fall off of the speeder and escape from the train- after he discovered' its near approach, but the fact remains that he did not do so, and even if he had had time he may have been so paralyzed by fright as to have been unable to do so, and, from the evidence,-it appears'that such was the case; but if he negligently failed to escape from the engine, that did not warrant the railway company in running him down, nor excuse its failure to keep the lookout required by law, nor its duty to avoid injuring him if it could do so by the use of ordinary care after his peiilous position was, or could have been,-discovered. We are of the opinion, however, that the undisputed testimony shows that the death of the deceased was instantaneous and painless. He was virtually cut in two above the hips by the wheels of the tender and engine passing over him and only moved his head slightly and gasped after it passed over him. The physicians testified that these movements were due to muscular relaxation and contraction and the shock was complete and death painless. ■ Such being the case, there can be no recovery for pain and suffering for the benefit of the estate and the court did not err in directing the verdict. The judgment is affirmed.