ARK.] MO. PAC. RD. CO . V. HANCOCK AND BUCHANAN. 911 MISSOURI PACIFIC -RAILROAD COMPANY V. HANCOCK AND BUCHANAN. 4-4997 - Opinion delivered March 28 1938. 1. RAILROADS— NIMAGENCE---DISCOVERED ,action by appel-,-., • lees for iniuries sustained, when a "hot.box" caused a wreck, evidence . held spfficient to justify the finding that the employees in ...charge of _the train Inew appellees were riding in a box car and that the -hoi safetSi.!-N 1 -
912 MO. PAC. RD. CO . V. HAN-cock AND BUCHANAN. [195 2. APPEAL AND ERROR—LAW OF THE CASE.—The law as declared on a former appeal becomes the law of the case, under the same facts and conditions. 3. PLEADING—DEMURRER TO THE EVIDENCE.—Although there is, under our practice, no demurrer to the evidence, the same result is reached by a request for a directed verdict. 4. RAILROADS—JUDGMENTS.—The statutes justified the insertion in-the judgment in appellee's favor in an action for personal injuries of a lien against appellant's property. 5. APPEAL AND ERROR.—Question not raised in the trial court cannot be considered on appeal. - -Appeal from Crawford Circuit Court; J. 0. Kincan-non, Judge; affirmed. - Thomas B. Pryor and W. L. Curtis, for appellant. Thomas P. Holt and D. H. Howell, for appellees. BAKER, J. This is the second appeal of this case. The first is reported as Missouri Pacific Railroad Company v. Hancock, 187 Ark. 1007, 63 S. W. 2d 973. The statement made -in that first appeal may be taken as a statement in the instant case. There is no real or essential difference except in the instant case the error complained of in tbe former appeal and upon which it was reversed does not appear. Hancock testified that he and his traveling companion, Buchanan, were desirous of retUrning to their homes in Oklahoma and in the railroad yards of North Little Rock, at night, they accosted someone and asked about the time they might catch a freight train going from North Little Rock to Van Buren and were advised that the train would leave about 10:00 o'clock. The conductor upon the train upon which they did ride testified that someone talked to him in the railroad yards and . asked about what time the train would leave. Hancock also testified that before daylight the next morning, after leaving North Little Rock at 10:00 o'clock at night, he talked with a man who looked like a brakeman and who was carrying a lantern, such . as they carry, and asked if they had reached Van Buren; that the brakeman answered that they were then about forty miles from Van Buren and it would take about an hour and fifteen minutes to get to that point. At the time he talked with -that
ARK.] MO . PAC. -RD. Co. v. HANCOCK AND BUCHANAN: 913 man he •was standing- in the door of a box car whete he and his companion had 'ridden during the night. He -said this man with whom he talked climbed aboard the train and gave the- starting signal. This testimony is denied, but the jury had a right to believe'it and they found it to be true, •so it must -be said in consideration of the jury's yerdict that the employees . of the train, or at least some of them, knew that Buchanan and Hancock, though they did not know their names, were tiding in a box car. We think there is Only one conclusion to ' be reached about how this accident occurred, that -is that there was a hot box, or journal upon one-of the box cars, seven or eight cars back, ot removed from. the 'engine. - Hanceck testified nbOut seeing this smoking and blazing journal hex -. Several other witnesses testified to the 'same of feet. Among the number of thoSe who saw it was the station agent at Alma, who gave a signal to the operators of the train. 'Others- attempted to signal the engineer, fireman and conductor. This hot box was upon the lef t-hand side of the train as it Moved forward. Tho railroad employees teStified they did not see it. - The fireman, whose Position *as uPon that side, testified. it was one of his duties to Observe or watch to the tear, testified he did not see it Some of the brakernen testified that they were in the cupola of the caboose, looking forward on the left-hand -side and did not observe either tbe smoke_ or the fire-from -the hot box. The third or swing -brakeman testified that for a time, at least, he -rodo in what is .called the . dog house; the. small box-like structure on top of tbe tender. From this position he looked*back over the train and that it was bis duty to observe anything Wrong iri the operation of the train-. Just a short distance out of Van Buren this journal 'burned so as to break - off and the wreck occurred in- which young Buchanan was killed and Hancock somewhat seriously injured. Some--witnesses • testified that flames from this hot box were two or three:feet long. It is, also, -shown that for some-distance before the point was reached atwhich the accident occurred the railroad tracks . were curved which- gave- those, who were-.in pOsition to -observe the
914 Mo. PAC. RD. CO . V. HANCOCK AND BUCE •-NAN.. 1195 condition ot . the train, both from the front and rear, better opportunities r . e seeing this fire or smoke from the hot -box.. Several witne§e§ testified to this Condition in addi-. tion to the plaintiff, Hancock, who also stated that from the door of the box car, where he and Buchanan were riding, he could see the engineer and fireman in the engine cab: • This WaS • aTter daylight and perhaps only a shed+ time before the' Wreck Which 'occurred abent 7:00 o?clock in themorning , This hardly conceivable that the conditions as:testified to by these numerous witnesses as-to flames and smoke were seen hy the plaintiff and his. companions, including Buchanan and others who -had gotten into the car before the wreck and person's along the railroad tracks and at stations, and at the same time: not be seen by the railroad employees. It is argued; perhaps with some degree of reason, that the •railroad employees were attempting to run - the last fe* miles, though the hot box was discovered, and get into the yards of Van Buren where the yard crew would have to take care of the train with its hot box, rather than the crew in charge of the train upon the road: Witness Duke, who was both a brakeman and con= dtictor, though working as a brakeman, upon this particular train, testified ". that . it was the duty of the entire Crew to fix a hot . box . on . a train before it reached the terminal and that it was the duty of the car men to fiX it at the terminar; , if • this car would have reached the yard, the car men would have fixed the hot box and if it had gone a half mile further the train crew would •not have had to fix it." So the jury might well have found, from:the showing made, that the operatives of the -train knew of this hot box with the . blazing, smoking bearings, but chose to ignore it because there-was only a short distance to go after itwas discovered. The Appellant has submitted to us numerous deci-siois both from our own court and Other jnrisdiCtionS, bearing • upon the 4fiestion of liability Tinder the-faet§ 'and . circumstance§• pfOven. • There is rio nece§: say at:this . tittle for a diScuisidh Of anY'Olt- theni; as the
ARK.] MO. PAC. RD. CO . v. HANCOCK AND BUCHANAN. 915 law in this case was.determined upon the former appeal. M. P. Rd. Co. v. Hancock, supra. It can make no difference now whether the court, or even a majority agrees with the • announcements made in the former decision. The law proclaimed there was not only binding at that time, bUt under the same , facts and conditions as they appear now the same declaration of law is applicable: Appellant argues the insufficieriey of the evidence to sustain the judgment under several different •headings, the principal one 'of which is' that it koperly moved for a directed verdict. . It is also argued that the appellant demurred to the evidenCe. It is also argued that the evidence is not suf= ficient to sustain the verdict. • Although our courts do not recognize the practice. of a demurrer to the evidence, the same result is reached by appellant's other objections and the request for the directed verdict if that remedy were available at all. It is not, however, under the.Circumstances as before stated. The only other.questiOn•argued 'seriously is that the judgment in favor of. the plaintiffs -had written into it the insertion of a lien against .appellant's property. The statutes justify the lien; . Appellant, incidentally, also calls attention to the• fact that the verdict of the . jury for George Buchanan and Flo Buchanan, appelleeS, was for the benefit of the estate of the deceased son,- 'Willis Buchanan, who was killed in the , same wreck in which Hancock was injured. That Matter was not raised hefor6--the trial court "in any manner. • There seems to be no objection to the form of the verdict. Attention of theitrial court is not called . to .this particular matter in the motion for new trial: • It is4 tOb late to raise it here for the first time. Although_ thiS Case must be affirmed upon the showing made here, the writer and Justices MCHANE and DoNHAM desire to disclaim approval of the application of the law of discOv, ered • p • eril as applied in thiS caSe, but is .impelled to do
916 Mo. PAC. RD. CO . V. HANCOCK AND BUCHANAN. [195 so on account of the announcements in prior decision and only on that account. The judgments are affirmed. GRIFFIN SMITH, C. J., dissents. • MCHANEY and DONHAM, JJ., concur. DONHAM, J. (concurring). This is the second appeal of these cases, the opinion on the first appeal being reported in 187 Ark. 1007, 63 S. W. 2d 973. I am concurring in the majority holding solely on tbe ground that the law as announced on the first appeal is the law of the case on the second appeal. Since on the • first appeal it was held to be a jury question as to whether or not the railrdad company is liUble, we must still hold under the same, or substantially . the §aMe, evidence that the question of liability was one for the jury. The jury having found for appellees, under correct instructions, mot questioned here, we must affirm the judgment. The court held on the former appearthat the railroad company is liable on the ground of discovered peril. The record reveals that Archie Hancock, eighteen years of age at the time of the accident resulting in his injury, and Willis Buchanan, eighteen years of age, were trespassers on one of appellant's freight trains. They boarded the train in North Little Rock about ten o'clock at night intending to go to Van Buren. As the train stopped at stations, other persons got into the car in which Hancock and Buchanan were riding. When they arrived at the station of Mulberry there were eight persons in the car. Hancock .and Buchanan, it seems, had gone to sleep ; and when the train arrived at Mulberry Hancock awoke and asked a. brakeman who came along going toward the rear end of the train whether or not tbey had arrived at Van Buren. The brakeman told him they had not, that it was about forty miles to Van Buren and that it would take about an hour . and fifteen minutes to get there. This was sometime before daylight. The evidence shows that a "hot box" developed two car lengths ahead of the car in which Hancock and Buchanan were riding: The evidence is sufficient to show that one of the brakemen knew that the "hot box" had developed. *Of course, it must be
ARK.] MO. PAC. RD. CO . v. HANCOCK AND BUCHANAN. 917 assumed that the brakeman knew there was some danger. in operating the train with a "hot box." just before reaching Van Buren the train wrecked. The record is sufficient to show that the wreck occurred because of the "hot box" that had developed and of which at least one of the members of the train crew had knowledge. Buch-anan was killed and Hancock was seriously injured. This court held on the former appeal that the evi• dence as here set out warranted a. submission of the cause to the jury upon the doctrine of discovered peril.-• 'It is admitted that Hancack and Buchanan were trespassers ; and flat they had no right whatever to be on the train: I thifik that this is not a case wherein the doctrine of discovered peril will apply ; and I, furthermore, think that there is I10 more liability for the death of Buchanan and the injuries to Hancock than tbere would have been thad the wreck been caused by a defective coupling or some other defect in the cars or engine to which the cars •were attached and of which defect some member of tbe train crew had notice. In the case of St. Lonis, Ron, Mountain Southern Railway Co. v. Reed, 76 Ark. 106, 8 S. W. 836, 113 Am. St. Rep. 78, this court said : "He (plaintiff) was injured by a collision which the evidence shows -was the result of carelessness, but was not the -result of wanton or wilful negligence. On the whole case, we are convinced that it would be unjust to compel the company to pay damages for the injury to plaintiff which was caused by his getting on a train not intended for passengers, in violation of the rules of the company." In the case of Williams v. Chicago; Rock Islaud ce. Pacific Railway Co., 139 Ark. 562, 215 S. W. 605, this. court said : "As stated by Judge RIDDICK in a similar case (St. L., I. M. S. Ry. Co. v.. Reed, 76 Ark. 106, 88 S. W. 836, 113 Am. St. Rep. 78), the liability of the coth-pany, if it exists at all, must rest upon the- wanton and wilful act of employees after discovering the peril of the trespasser. In that ease, as in this, the injured party Vas wrongfully riding on a through freight train, and the injuries resulted from a. collision caused . by the negligence of the servants of the company, but this court held that
918 Mo. PAC. RD. CO . V. HANCOCK AND BUCHANAN. [195 there was no liability on the part of the company for the injuries so inflicted. So, in the present case, if it be con7 ceded that there was negligence on the part of the cora: pany in failing to provide additional space between the sides of the passing cars and the bridge structure, that was not such negligence as would render the- company liable to a trespasser on the train to whom it owed no . duty except, as before stated, to refrain from acts of wilful negligence after discovering that the trespasser was in danger. Under no view of the law can it be held that the company's servants, under the circhmstanceS described, .owed the trespassers on the train the duty'of instruction or of warning them of . the dangers of the journey." In the case of St. Louis-San Francisco Railway Co. v. Bley, 168 Ark. 814, 271 S. W. 455, which involved an action for personal injury by one boarding a train with the conductor's permission to ride to the nearest station where he intended to buy a ticket,- this court, quoting from the case of Kruse v. St. L., I. M. & S. R. Co., 97 Ark. 137, 133 s. 841, said : "We deem it to be equally soUnd.in justice to say that, when a person enters a train without any intention to pay fare, but under a collusive agreement . with the conductor to ride free in violation of the rules of the company, and does not pay any fare, he does not legally become a passenger, and the railway company is not responsible for his safety as a passenger. Quoting from the language of Judge RIDDICK in the Reed ease, supra, if, under those circumstances, he 'is carried safely to his destination, he gains that much at the expense of the company„ On the other hand, if an accident happens, and he is injured, there is no . reason or justice ih requiring the Company to pay for his injuries, unless they 'have been wantonly or wilfully . inflicted.' The authorities whieh sustain the proposition are numerous." In the Bley case, the court further said : "There was some testimony that, in starting and in stopping the train as the various . switches were passed, the stops were made suddenly and the starts were made violently, and this testimony may have been sufficient to support a finding of negligence in the operation of the train. • ut there
AiiK.] MO. PAC. RD. CO .' v. HANCOCK AND 13:tbitANA-N. was no testimony whatever that there was any element of wilfulness or wantonness in the operation of the train; and, if appellee was a mere licensee and not a passenger, he is in no position to complain of the mere acts of negli-genif such there were—in switching the train around the wye." - -In the case of Reed v. Baldwin, et al., Trustees, Mis-sonri; Pacific Railroad Co., 192 Ark. 491, 92 S. W. 2d 392, this court held, quoting from the fifth headnote thereto : "A , licensee cannot recover for injuries caused by mere acts of negligence, but must show wilfulness or wantonness ' On the part of the defendant, for licensees take their license with its concomitant perils." There is •nothing whatever in the -record in the In . - • stant case to show that there was any element of wilfulness or wantonness in . the operation . of the train, nor de I think that there is any evidence in the record to show that the trespassers . on the train who Were injUred by the wreck were discovered in a position of peril in time to have ayoided injury to them by the exercise of ordinary care after such discovery. Before the . doctrine of discovered peril will apply, if indeed it ever aPplies, so as to require the exercise of care on the part of the:train crew to, protect a trespasser on the train from injniy, hiS peril must have been imminent and this fact mug have been known to and recognized by those upon whom the 'exercise of such care is alleged to have rested. Of course, if one being a trespasser on the train is wilfully or wantonly injured by a member or-members of . the train crew. in the operation of the train or otherwise,. the railroad company will be liable, if the acts of wilfulness . or wantonness are committed by its employees in the course of their employment. The- rule is well stated in Elliott on Railroads, 3rd Edition, Vol. 3, § 1793, as follows : "A railr6ad Cernpany owes:trespassers to contract &AY. Indeed, 'as -already stated, the 'general rule is that it owes them no duty. except not to wilfully injure them, and this rule applies to those wile are attenapting to steal a', ride: or Otherwise trespass upon the company's -cars. They ere riot in a position - tO invoke the - dectrine -of apparent aut on. y and can only hol he company liable
920 [195 for acts of its employees done within the scope of their actual authority, express or implied." .• Members of the ti aim crew in the instant case, who, it is alleged, knew of the peril to the trespassers on the train, evidently were oblivious of any imminent peril to these trespassers. These employees were on the- same train as the trespassers ; and if the trespassers were in imminent peril hecause of danger of the train's being wrecked, the employees themselves likewise were in imminent peril. I think it may be assumed that if the train crew had believed they were in imminent peril they would have stopped the train and thus have avoided the risk of wrecking it. The most that •can be said about the conduct of the train crew is that they may have been negligent in • operating the train with a . "hot box." It certainly cannot be said that they discovered and recognized any imminent peril to themselves or the trespassers: If they had made such discovery, the love of life and the desire to escape injury would have impelled them to.take action for their.own protection. It is my opinion that this simply is not a case where the court should have attempted to apply the doctrine of discovered peril. The appellees should . not have been permitted to recover in the- first instance. Having recovered, their cases shOuld have been dismissed on the first appeal. They were not dismissed, however, and the law of the case on the second appeal is that announced on the first . appeal. Regarding this rule as binding upon the court, I concur with the majority in 'affirming the judgment. But it is only for the reason stated . that I do so. I am authorized to say that Justice MCHANES: concurs with me in this opinion.
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.