ARK.] CilicAbo R. I. & P. RY. CO . , LOWDEN, 887 TRUSTEE V. SCOTT, ADMR. • CHICAGO R. I. & P. RY. CO ., LOWDEN, TRUSTEE SCOTT, ADMR. 4-4326 Opinion delivered June 22, 1936. CARRIERS—RAILROADS.---While, under § 8562, Crawford & Moses' • ig., providing that "all railroads * * * shall be responsible foi all damages to persons and prOperty done or caused by the running of trains," if an injury is shown by the evidence to have been ,caused by the running of a train, a presumption arises that , the injury was caused by the negligence , of the railroad company, there must be some evidence that the injury was caused by ale operation of the train. 2. • CARRIERS—RAILROADS.—Where, in an action against a railroad company to recover damages for the death of one allegedly killed by the running of a train, the evidence shows . only that the body of the deceased was found on the tracks of company, but no evidence that he was killed by . the train, the railroad company was entitled to a directed verdict. Appeal from Ouachita Circuit Court; A. L. Brum-below, Special Judge ; reversed. Thos. S. Buzbee, H. T. Harrison and A. S. Buzbee, for appellants. . Lawrence E. Wilson, for appellee. • MEHAFFY, J: This suit was begun in the Ouachita Circuit Court by the appellee, administrator of tbe estate of Sam Woods, deceased, to recover damages for the death of Sam Woods, who was alleged to have been killed by the negligence of the appellants. The appel-lee alleged that Wobds Was a passenger on a mired train from Craney, Arkansas, to Crossett, • Arkansas..
888 CHICAGO B. I. & P. RY. CO. ; LOWDEN, [192 TRUSTEE . V. SCOTT, ADMR: It was 'alleged that as a passenger. he was directed to ride in an empty box car ; that after the train proceeded, and ; npon its arrival . at.Hermitage, • the . train , did some switching, and '.thereafter the ,raangled and: mutilated. body , of-, Sam,. Woods was found upon : the switch track. . .There • was . a.jury trial; and •a verdict and judgment against. appellants .in . • the' sum.:of, $500. Motion for new. trial was overruled, and the, ease is here on appeal.... Letters of administration upon the estate of -Sam Woods were introduced, and Bertha Woods testified in substance sas follows : She lived at Harrell, Arkansas, and her . husband's • name was Sam Woods; they had' two children, nine and seven , years of: age ; Sam Woods left home the fifth day of February ; he was found on the sixth at Hermitage; 8am -was going to Crossett, and on the fifth of .February. left home ,to go to his cousin's Crola Strong, at . , Craney, and. from there to Crossett ;. it was about nine : miles io Oraney ; Sam had one dollar ; she identified .the, clothes that .Sam had on . at. the..time he was foUnd. .. • • LeVi Ellerson testified in snbstance that he : lived at Ilerthitage, kifeW 'Sam' WdOds abont ten yearS befor re his death ; be aaw Sarh' Woods . body on ; the, morning of Feb-ruary ;6,, 1Q35,..lying, on . the passing, track on the :rail at Hermitage;.the stopped . and looked at . Sam and-went on to his' work ; Sam was dead; there' were some Cars; on the . PaSsirik , track, 'arid . Sarii,'s 'hodf . Was 'betWeen twO of the cars ; there were' otber People there, but he 'aid . not know who they were ; there was a highway through there;'and Sam : was lyirig north of the highway ; betWeen the highway and the station ; he was on the—outside' rail'. from the main :line. . Jesse Paynix testified in substance that he saw the body of Sam Woods en 'the morning of February 6; he was dead ;.there were some box , cars on the side track; did not ,know how . inany, north ; of the highway that.goes through Hermitage;. something. like,. , three or four cars between, his body and the highway ;. he was lying between, two cars on the mutside rail from the :main track.. . 'Alex W. Williams. testified that .be stayed all night: at Crola; Strong's, and met Salt Woods :there-; gam:
ARK.] CHICAGO R. I. 85 .. P. RY. • CO. LOWDEN 889
TRUSTEE V. SCOTT, ADMR. 'slept withhim that . night ; Sam' told him he wa g 'going to 'Crossett, and left early ; next morning; the train' was'out there when Sam got up; he did not-know what: becaine of Sam after . he left. the room ;.the.train got there before Sam got up, and had started . moving , off when , Sam left the. house ;- there' : , waS a 'water': tank at' Craney, and , the train stopped to 'take Water' Crola :StrOng weke Sara up, and about the time he got ready to leave ' • the houSe the train was mOving Off ;: he. heard' abouthis being dead the next evening. • .• • -•: • .„ . Lena StOng, Crola 'Strong, teStified .'that Sam Weeds' Spent the 'night-at their , hônse the 'night be.- fore he was found dead the next Morning; did net knoW what. time . Sam left,, but:before day ; ,the train' was at Craney bef ore Sam, left : the house ;. was starting 'off , when he.left. Her! husband told Sam:when .he . left . :to be: careful; :they . heard. nothing more from him until they heard he was. dead. ; • .:'. -Robert W. 'Meeks, the engineer, .teStified that 'between: 5:30 and 5 o they. got : to . Hermitage; HermiL tage- is about . six miles- from: Craney ; he; did not see: or 'know of''anybody L gettin o. oh the train at Craney;:;they did some. sWitChing,-andb while- they were doing , that he was keeping' a lookout ;' saw nobody on the track,- and did not . rmi over anybody , that night. ,. ' R. C. RUssell, an . employee : of the Rock, Island; was On the local freight at : the' time when Sani Woods bOdy was found ;. it was a little after 'five o'cloek when:they passed Hermitage; about tWentY before' . that they' had been at •'Craney ; they . -Wok 'water' at Craney. This: witness, 'as 'conductor, was in charge-of 'the train: !They carried a . big steel . coach . for 'pa8sengers, but 'carried a cabOoSe in addition to :that ;: they did . 'not take:any 'passengers' at . Craney; did not see anybody board the•trahi at' Craney ;' when they get to Hermitage theY did 'some switching; and-witness had t told ; ORO of his brakeman• to stay 'in the caboose.' ' He saW , Mobedy at , Hermitage, except the: trainmen; he first:found'ent that this.bOy-Was dead-when they got to 'Crossett; 'it WaS his 'duty to .make a! rePOrt showing the . paSsengers he hEicl and this report • shows that he took on the first pasSenger at : Herniitage.
890 CHICAGO R.. I. .& P: B y. CO. , LOWDEN, [192 TRUSTEE V. SCOTT, ADMR. He saw the body of Sam Woods, and it was not mangled; he was dead. This witness would not say as to how or when Sam Woods was killed. The conductor's report . was introduced in evidence. W. Holdridge, 'a brakeman on the train, testified that he kot out on the grOund at Craney, but did, not see anybody . board the train, Edgar Bryant, Saul Crime and W. Warren, employees of the appellant, all testified, and in substance their testimony is the same as- that of the other em-plc. )yees„of the . appellant, and Warren testified• that the body was not mangled. • This suit was .brought and the case tried on the theory that Sam Woods was a .passenger on the train ; that he boarded the train at Craney. There is, however, no evidence that: he boarded the train at Craney. The evidence is to the effect that the train was. starting when he left the house of •Strong, and he left intending to get. on the train: .This . shown that he had a dollar. in his-pocket with which Ao pay his fare; but the undisputed evidence is- that he did not board the train as a passenger. The evidence -does not show whether the dollar was in his. pocket when the . body was found. .; There is but one question argued by appellants; and that is that the testimony was not sufficient to.justify the submission the -case to. the jury, and that. the jury should have been directed to return a verdict in appellant's favor. Under the . statute and decisions of this court, if an . injury is shown by the evidence to have been caused by the running of the train, a presumption arises that the injury was caused by the negligence of -the railroad company. Before this presumption can be indulged, however, there must be some evidence that the injury was caused by the operation of the train. There is no evidence •n this case that there were any bruises or wounds found on the body. It is true that the appellee introduced the clothing worn by Sam Woods, and it was torn; but if Woods had been killed by the operation of a train, there would certainly have been some evidence that the train struck him.
ARK.] CHICAGO R. I. & P. RI". CO. , LOWDEN, 891
TRUSTEE V. SCOTT, ADMR.. The .statute reads as follows : "All railroads which are now or may hereafter be built and operated, in whole or in part in this State; shall be responsible for all damages to persons and property done or caused by the running of trains in this State." 'Crawford & Moses' Digest, § 8562. The only evidence. is that Sam Woods' body Was found on the track. There is no • evidence that he Was killed by the train, and in other to hold the railroad company liable, under this statute, the evidence must show that the damages were done or caused by the running of a train: Woods might have died. from any one of number of cause's. No one knows how he.died. This. court has said: "It iS *true that no eye witness testified about the injury to the deceased, the railroad company not introdueing anY testimony of the operatives of its train, bUt the testimony adduced shows that the body of deceased was found upon the right-of-way, and within a few feet of the track of appellant with the skull crushed in such a manner as would have been the result had he have been struck by certain partS of the engine . (the cylinder head or monkey-motion outside the drivers) of the train, and his shoulder likewise broken and crushed with black oil smeared upon the hair and the clothing on . the shoulder, the kind Of oil used in the operation of the engines of appellant, which would have brushed off the machinery when it had come in*contact with the body of deceased. The jury could have found from these facts established, and the reasonable and probable inference therefrom . that . deceased *as struck and killed by the train." St. Louis-S. F. Ry. Co. v. Crick, 182 Ark. 312, 32 S. W. (2d) 815 ; Missouri P. Rd. Co: v. Crew, 187 Ark. 752, 62 S. W. (2d) 25. We also said : "Before tlie jury would have been justified in finding for the appellee, it must have found as a fact that the dog was killed' by the train. The evi: dence must have shown this. It was not necessary to show by direct evidence, but the fact might be shown by circumstantial evidence." Missouri P. Rd. Co. v. Hull, 182 Ark. 873,33 S. W. (2d) 406; Missouri P. Rd. Co. v. Foltz, 182 Ark. 941, 33 S. W. (2d) 51.
892 [192 'When the evidence shows that the injury was caused.•by • the operation of a .train, .the presumption is that the company .operating the train was . guilty of negligence, and the burden is-upon . suck company to prove that it was not guilty of negligence.?' Baldwin v. .Clark, 189 Ark. 1140, 76 S. W. (2d) 967 ; St. Louis' S. W. Ry. Co. v. V aughafti, 180 Ark. .559, •21 S. W.. (2d) 971 ; Kelly v. DeQueen & Eastern Rd. Co., 174 Ark. 1000, 98 S. W. 347. All .of our cases hold •that to recover, against a rail, road company, it is necessary to show, by evidence, either direct or circumstantial, that the injury was.caused by . the operation of. a, train, and in this, case there is ,no evidence ;from which the jury could have found , that Woods was killed by .the running of a train.. . • , The trial . court shmild,..there6re,, have directed q-verdict in favor of appellants:. —The ;judgment of the .circuit court is reversed, and the cause dismissed.
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.