Russell v. St. Louis Southwestern Railway Co.

Smith, J., (after stating the facts). We think the verdict was properly directed in this ease. It is true that, under the lookout statute, approved May 26, .1911, it is made the duty of all persons running trains to keep a constant lookout for persons and property upon the track of any railroad, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company operating such railroad is liable and responsible for all damages resulting from the neglect to keep such lookout; and this is true, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employees in charge of such train could have discovered the peril of the person injured in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril; and this act devolves upon the railway company the burden of proof to establish the fact that this duty to keep such lookout has been performed. This act has been construed in a number of recent eases. St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431; Burch v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 396; Chicago, R. I. & P. Ry. Co. v. Gunn, 112 Ark. 401, 166 S. W. 568; Chicago, R. I. & P. Ry. Co. v. Bryant, 110 Ark. 444, 162 S. W. 51. 'These eases construe the lookout statute to mean that “upon proof of injury to such person by the operation of its trains under .such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided, if a lookout had been kept, that a prima facie case is made.” But there must be some evidence, and not mere conjecture or speculation, which would reasonably warrant the inference to be drawn by the jury, that the presence of the person injured upon the track could and would have been discovered by the operatives of the train 'by keeping a constant lookout, and that had such lookout been kept the injury could have been averted by the exercise of reasonable care thereafter; and if the jury finds the facts so to be, a recovery of damages will not 'be defeated on account of the contributory negligence of the party injured. But this presumption and right to recover does not arise upon mere proof of injury; but, upon the contrary, there must be proof sufficient to warrant the finding that the presence of the party injured could and would have been known to the operatives of the train and the injury to him averted by the keeping of this lookout, and the exercise of care after discovering his presence. Here there is nothing but conjecture as to the manner in which deceased was killed by the train, and various theories are ” offered in explanation of that occurrence; but the only positive evidence is that the engineer and fireman were keeping a lookout as the train approached from the west, but neither of them saw the deceased nor was aware that they had struck him; and the evidence upon the part of the citizens standing at the depot that they observed the train’s approach to the station and did not see any one upon the track in front of the train. Under these circumstances, it would be mere conjecture to say that deceased could have been seen, had a lookout been kept, and that the injury could have been averted by the exercise of care after discovering his presence on the track. But conjecture and .speculation, however plausible, can not be permitted to supply the place of proof. St. Louis, I. M. & S. Ry. Co. v. Hempfling, 107 Ark. 476, and cases there cited. The judgment of the court below is, therefore, affirmed.