Chicago, Rock Island & Pacific Railway Co. v. Gunn

Hart, J., (after stating the facts). In the case of Chicago, R. I. & P. Ry. Co. v. Bryant, 110 Ark. 444, recently decided by this court and also reported in 162 S. W. 52, the court said: “Prior to the passage of the new lookout statute quoted above, there was, of course, no liability on the part of a railroad company to trespassers or those guilty of contributory negligence, except on account of negligence in'' failing to avoid an injury after discovering the perilous situation of the injured party. But the law as it now stands requires the train operatives to keep a lookout for trespassers and all others, and makes the company liable for negligence in that regard, notwithstanding the contributory negligence of the injured party. St. Louis, I. M. & S. Ry. Co. v. Gibson, 155 S. W. 510, 107 Ark. 431. The Legislature, in passing this statute, necessarily had in view all of the requirements of the law imposed for the protection of persons on the track, and attempted to lay down a rule of conduct for those in charge of the train. This, of course, implied a duty to comply with all the requirements of the law exacted for the protection of persons on the track, and, in order to make the new lookout statute effective, it must include the duty to equip the locomotive with a headlight of sufficient power and brilliancy to' enable the engineer or motorman to keep a proper lookout. It can not be the state of the law that the trainmen are required to keep a lookout and yet the company not bound to provide means for making the lookout efficient. The purpose of the statute in requiring a headlight of high candle power was to enable the engineer and fireman to discover objects on the track, and when the Legislature subsequently declared the duty of those operatives to maintain a lookout, and fixed liability on the part of the company for their failure to do so, this necessarily carried with it the statutory duty of the company to equip the locomotive with proper headlight, and to make the company liable for damages caused by a failure to do so.” Objection is made by counsel for appellant to certain instructions given by the court; but we do not deem it necessary to set out the instructions or to discuss them in detail. When the principles of law announced in the case quoted from above are considered, we are of the opinion that the instructions were as fair to the appellant as it could ask. The court instructed the jury that if it should find from the evidence that at the time decedent was struck and killed on appellant’s track he was not at a regular road crossing, and if it further found that the engineer or fireman on the engine was keeping such a lookout toward the front as was practicable under the circumstances, and that, by reason of the fact that the electric headlight had gone out and could not be relighted just before the accident, they could not see far enough in front of the train.to enable them to stop the train in time to prevent striking the decedent after discovering Mm on the railroad track, the appellant was not liable,, and that the verdict of the jury should be for appellant. The court further said in this connection that when appellant discovered a light ahead on the track it should have used reasonable care in approaching the same. TMs instruction presented appellant’s theory of the case in as favorable a light as it was entitled to. We aré also of the opinion that the evidence justified the verdict. The accident occurred between Brinkley and Eden. The track between those points was perfectly straight. The engineer was running his train at the rate of thirty-five miles per hour when he first sawT the light about a quarter of a mile away. He admits that he could have then stopped the train in time to have avoided striking the speeder on which decedent was riding. It was dark, and the engineer should have proceeded more cautiously, knowing that his electric headlight was not in use, than he would have done had it been in operation. The engineer testified that he thought the light on the track in front of Ms engine was from some one coming* out from Brinkley to meet the train to ascertain why it was late. The jury had a right to carry into the jury box their knowledge gained in the every-day affairs of life, and it might have found that the engineer should have known that a lantern carried in the hands of a person walking on the track would sway with the motion of his body, and that one carried on a hand car propelled on the track would remain in a stationary position; that by observing the light in question he could have ascertained that it remained in a stationary position, and was, therefore, notice to him that it was a light on a hand car being propelled on the track, and that the persons on the hand car were oblivious to the approach of the train. Under these circumstances, he gave no warning’ of the approach' of the train, except to blow the whistle for the crossing. The train was running at the rate of thirty-five miles per hour, and he made no effort whatever to stop it until he was within a very short distance of the speeder. He was only about fifty feet away when he applied the emergency brakes. Therefore, the jury was justified in finding a verdict for appellee. Appellant offered to prove that the negro woman who accompanied the decedent to Biseoe was a strumpet, and that they were at a negro dance hall, which was also a house of prostitution, at the time decedent left with her and the neg’ro man to go to Biseoe; but the court refused to admit this testimony. The decedent was a white man and lived with his mother and sister. He had two children — a daughter twelve years of age and a son six years old. It was admitted that decedent was instantly killed. It was not alleged in the complaint that the children lost anything in the way of moral or mental training, and the only element of damage sought to be recovered was for the contribution that decedent made to their support. Counsel for appellant therefore contend that the excluded testimony would have tended to show that decedent was a man of dissolute habits and depraved disposition, and that, on that account, not likely to contribute any further to the support of his children. Appellant was permitted to prove, by other evidence, that the decedent was a constant drinker and frequently in the habit of getting drunk; that decedent was at a negro dance hall before he left for Biseoe on the night he was killed; that both he and the negro woman got off of the speeder at Biseoe and went to a saloon and got some beer and whiskey and remained away from the speeder for about an hour. The evidence showed that decedent was a white man, and the testimony admitted tended as fully to show the dissolute character and depraved disposition as the testimony excluded, and we do not think the action of the court in refusing the offered testimony was prejudicial error for which the judgment should be reversed. The court permitted the sister of the decedent to testify that the deceased would teach his little girl her Sunday school lessons and wanted her to go to Sunday school, and made her practice her music lessons. It is urged by counsel for appellant that the admission of this testimony was erroneous because it was not alleged in the complaint that the children lost anything on account of the moral or mental training by their father. They say the testimony was objected to specifically on that ground. As we have already seen, the court limited the recovery of appellee tó the pecuniary loss sustained by decedent’s children. The testimony was not admitted for the purpose of showing that the children had suffered a loss of mental and moral training by their father on account of his death, but was admitted for the purpose of proving that the father had an affection for his children, took an interest in their welfare, and that, on that account, would be likely to contribute in the future to their support. Therefore, we do not think the testimony was erroneous. It is next urged by counsel for appellant that the judgment should be reversed on account of the closing argument of counsel for appellee. It appears from the record that the attorney for appellee stated to the jury in his closing argument that if he had brought this action for more than three thousand dollars the appellant would have removed it to the Federal court; that he brought the suit for the maximum amount that he could sue for in the State court, and urged the jury to return a verdict for the full amount sued for. At the time of decedent’s death, he was forty-two years of age, and his life expectancy was twenty-six and a half years. It was admitted that he was in good health at the time of his death. According to the testimony of his sister, he had been at work pretty regularly for several years before his death. He had been making from $1:50 a day to $75 per month. He contributed about $25 per month to the support of his children. She also stated that he was not in the habit of getting’ drunk and did not spend most of his wages for whiskey; that he contributed regularly to the support of his children. Now, the only effect that counsel for appellant contends the argument had upon the jury was to arouse their prejudice and tend to make them return a larger verdict in favor of appellee than they otherwise would have done. Counsel for appellant does not contend here that the verdict is excessive, and have not asked us to reverse the judgment on that account. While the proof introduced by appellee as to the contribution made by decedent to the support of his children is contradicted bj7 that introduced by appellant, yet the jury were the judges of the credibility of .the witnesses and the weight to be given to their, testimony, and, under the testimony adduced by appellee, the jury would have been warranted in rendering a larger verdict than they did. Therefore, we do not think we should reverse the judgment on account of the argument, even if we concluded that it was erroneous. St. Louis, I. M. & S. Ry. Co. v. Smith, 82 Ark. 105. In that case the court held that an improper argument will not be deemed prejudicial where its only injurious effect would have been to enhance appellee’s damages, if appellant does not complain that the verdict was excessive. The judgment is affirmed.