-752- - MISSOURI PACIFIC RAILROAD CO: V: CREW. 1187 MISSOURI PACIFIC RAILROAD COMPANY V. CREW. 4-3069 Opinion delivered July 10, 1933. 1. RAILROADS—K ILLI NG BY TRAI N. —Evidence that the body of deceased was found on defendant's right-of-way, and that deceased's skull was crushed, his neck and several ribs broken, held to support a finding that he was killed by defendant's train. 2. RAILROADS—KEEPING LOOKOUT—JURY QUESTION.—In an action for a killing by defendant's train, the questions whether the trainmen kept a constant lookout and whether it was possible for them to do so with a defective headlight and a badly smoking engine held for the jury. 3. RAILROADS—KEEN NG LOOKOUT—BURDEN OF PROOF. —Where the proofs show . that deceased was killed by a train under circumstances that raise a reasonable inference that the injury might have been avoided if a constant lookout had been kept, the burden shifted to the railroad to show that such lookout was kept. Appeal from Chicot Circuit Court; Patrick Henry, Judge; affirmed. STATEMENT BY THE COURT. This suit was instituted by Mrs. Raymond Crew in her own right, as administratrix of the estate of Ray-mond Crew, deceased, and as guardian of certain minors, children and dependents of Raymond Crew, to compensate an injury which resulted in the death of Raymond Crew on or about November 14, 1931, at Macon Lake, a flag station on appellant's line'of railroad in Chicot County. The pertinent facts and circumstances with reference to the injury and death of Raymond Crew, deceased, were to the following effect : Sometime prior to the injury Raymond Crew had been in the employ of the Missouri Pacific Railroad Corn-
ARK.] MISSOURI PACIFIC RAILROAD CO. 1). CREW'. .753 pany, and at the time of his death he had on his person a pass which had been issued by the railroad company ; due to the depression, he had been let out of employment with the railroad company, and at the time Of the injury was employed in the State of Mississippi; on the date of the fatal injury he left Mississippi, returning ostensibly to McGehee, Arkansas, where his family resided; he was traveling in an automobile which had broken down on the road some distance from Macon Lake, and _he walked into the small village of Macon Lake, where he was observed by witnesses about 8 o'clock P• M. on No-vember 14, 1931, waiting around the depot. Appellant's line of railroad at this point extends in a . north and south direction and is straight for several miles north and south of the depot. On the morning. of November 15, about 7 o'clock, the dead body of Raymond Crew was discovered lying some 20 feet north of the depot build,- ing; his head . was lying within about 6 feet of the rail-road track and ties, his feet extending in a southeasterly direction from the railroad track. Upon examination of the body it was found that deceased's skull had been crushed in the left temple ; a number of ribs were broken on the right side, and his neck was broken; the blood vessels of his body had.been so ruptured as to prohibit a first class application of embalming. Other evidences were found on the body indicating that he had received a terrific blow; his hat was found in the middle of the railroad track; the surface of the ground for several feet immediately south of the body indicated some disturbance; the grass and weeds which were growing immediately adjacent to the railroad company's , track, and between the track and the body of the deceased, were shown to have been pressed down away from the track and towards the body of the deceased, thus indicating that deceased had been struck by a moving engine going from south to north and the body pushed away from the track. The case was defended by appellant upon the theories of no liability and of contributory negligence. The engineer and fireman on the train which passed Macon Lake about 9 o'clock P • M. testified that the train was run-
754 • MISSOURI Ricino RAILROAD CO. v. CREW. [187 ning about 35 or 40 miles an hour when it approached and passed Macon Lake ; that they were each keeping constant lookout, and that-neither saw any one endeavor, ing tO flag the train. This train reached McGehee about 11 o'clock P• M. November 14, 1931, where it was determined that the right pilot step on the engine was bent. • Certain work sheets were introduced in evidence by appellee which tended to show that the headlight on the engine operated on the night of fhe injury was in bad condition,•and that the engine did not properly'steam, and as a result thereof smoked very badly. These work sheets were signed by Mr. Jansen, the engineer, on NOvembdr 14, 1931. . - It was further shown On behalf of appellant that about 10 o'clock P. M. On the date of the injury a freight train passed Macon Lake, and, because of a hot box in one of the journals,' it Was necessary to stoP the train, and that they did stop to repair this condition, and all-the employees on this train testified that they had opportunity to have seen Crew's body if it had been on the point where it was found ai 7 o'clock the next morning, but that it was not discovered at that 'time. The court submitted the case to the jury under instructions, which we -deem unnecessary to here set out, and it returnK1 a . verdict in favor of appellee for $1.500, from which judgment this ap p eal is prosecuted: Other facts will be stated or referred to in the opinion. . R. E. Wiley and E. W. Moorhead, for appellant. E; P. Toney, A: Z. Golden and J. M. Golden, . for appellee. . • , •JOHNSON, C. J., (after stating the facts). !Appellant earnestly contends, that the trial court committed reversible error in refusing. to direct the jury to return a verdict in its favor. This argument is based upon the theory that there is no evidence to show that Raymond Crew was struck or injured by a moving train on appellant's line of road. It is true, of course, that thdre is ri6 positive testimony that Raymond Crew was struck or killed by a moving train, but the circumstances are such as to warrant
ARK.] MISSOURI PACIFIC . RAILROAD CO. v. CREw. 755- this inference. The testiniony introduced shows that the-body of deceased was found upon the; right-of-way and within a few feet of appellant's track. The skull was crushed, the .neck broken, and several ribs on the right side were injured; and the jury was fully warranted in finding, that the death of Raymond Crew -resulted from a-terrific blow from a moving train. -.:•. This court held in St. LouisSairt Fra/acisco Railway Co4npanY v. Crick, 182 Ark. 312, 32 S. W. (2d) 815, quoting from the second- headnote ' "Where the body of deceased was . found upon defendant's right-of-way within a few feet Of the track with his skull crushed and hiS shoulder crushed, with black Oil smeared upon his hair and clothing, the jury were Warranted in finding 'that he Was killed' hy the defendant's train." On the' facts, the Crick case is full authority for the submission of this - case to the jury. The fact' is, the in-' stant ca§e is' ninch stronger than "the Crick case, because Thomas 'Crick, the injnred`party . there, was 'determhled to be a trespasser on' the railroad company's tracks, whereas'in the instant ease Raymond CreW was an invitee. and had' h. perfect right to be , at the flag station at the time he *as killed: The 'facts 'and circUmstarices- were such as to warrant the jiitY iii belieVing that Raymond Crew was aVaiting the ; arrival of a train to transport him to McGehee ; that he had his railroad pass in his hand in preparation of boarding the train; that, because of the defective conaition of the headlight on the engine and the excessive amount of steam,flowing from the engine, the employees on the train did not and could not discover his presence, and,'as a result thereof, operated said train against him,.which re§ulted in:his death. It is next insisted that the court erred in giving and refusing to. give to. the jury, certain instructions. Instruction§ 1;6; 8,9 and 12; given on behalf of ap-pellee, are conceded . to : be correcf dedrar tiOns of laW,.but it is sainhat there is nO evidencejo s4fiort thein.l . As we have heretofore pointed,out„ . the,evidence was amply sufficient to submit:to the,jury the questions as to whether
or not a lookout was kept by die engineer and fireman, and whether or not it was possible for the engineer and fireman to keep such lookout with a defective headlight and a badly smoking engine. It is said that the evidence of the fireman and engineer to the effect that a constant lookout was maintained is undisputed, and therefore plaintiff's instructions should not have been given. This contention is fully and completely answered by the engineer's work sheet report made on the night of the injury. This report shows that the headlight on the engine was dim and in bad condition, and, in addition, that the engine was smoking badly. Appellant's requested instructions which were refused by the trial court were fully covered by instructions given. • The facts of this case bring it well within the rule announced by this court in St. Louis, Iron Mountain & Southern, Ry. Co. v. Gibson, 113 Ark. 417, 168 S. W. 1129, wherein we held : " The effect of our holding in the former opinion is that, where proof has been introduced by the plaintiff of an 'injury to a person by the operation of a train 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, then the burden is shifted to the railway company to show that such lookout was-kept." • No error appearing, the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.