Opinion
Opinion delivered October 6, 1930.
1. DEATH — RIGHT OF ACTION. — Deceased's mother as his administratrix could maintain an action for damages for his death, under Crawford Moses' Dig., 1074-5. 2. RAILROADS — KILLING BY TRAIN. — 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 on smeared upon his hair and clothing, the jury were warranted in finding that he was killed by the defendant's train. 3. RAILROADS — KILLING BY TRAIN — PRESUMPTION. — Evidence justifying a finding that deceased was killed by defendant's train raised a presumption of negligence and imposed upon defendant the burden of proving that a proper lookout was kept, as required by Crawford Moses' Dig., 8568.
Appeal from Poinsett Circuit Court; G. E. Keck, Judge; affirmed.
STATEMENT BY THE COURT.
This appeal is prosecuted from a judgment for damages for the wrongful death of administratrix's decedent, Thomas Crick, alleged to have been caused by the negligence of the appellant in failing to keep a lookout and avoid injury to decedent, a trespasser on the track.
Thomas Crick, an unmarried man 24 years of age, lived in Marked Tree with his parents, but worked at Trumann, 12 miles north of Marked Tree. He came home Saturday afternoons alter work and returned Sunday afternoons to resume work Monday morning. He was last seen alive with his mother on the highway bridge Sunday afternoon May 6, 1928. The complaint alleged that on that Sunday night he started to walk from Marked Tree back to Trumann, sat down on the track of defendant near mile post 444-19 and was struck and killed by the fast freight train of defendant operating on the track. That the defendant's engineer and fireman saw or by the exercise of the statutory duty to keep a lookout could have seen the deceased on the side of the track, and could have stopped the train without striking him, etc.
The roadbed from Marked Tree to Trumann is straight and runs through swampy ground and the track is built up into a high dump. The next morning about 7 o'clock the body was found lying on the east side of the track of appellant, outside the rails with the head near the end of the ties. Above the ear on the left side of the head was a deep wound — the skull fractured — in which a man could lay his two fingers, and the left shoulder was crushed and broken. About the wound on his head and shoulder was black on of the kind used by the appellant in the operation of its engines. The man had apparently been dead 5 or 6 hours. The track ran north and south there, and the body lay in an angular position to the track, the head some two or three feet from the ends of the ties and the legs and feet pointing to the southeast. There was blood on the ground under the head. There was no indication of a disturbance of the chat on the right-of-way or that the body had been dragged, and no blood or hair or fragments of clothing was found on the ties or rails of the track.
The time of the passing of through trains on the track on the night before the finding of the body was shown, and also that flood conditions prevailed in the vicinity, and the trains were running under "slow orders" from 15 to 25 miles per hour, and the headlights of the trains were powerful, throwing beams of light for 1,500 feet in front of the engine that would have enabled the operatives to see a man on or near the track at that distance or on the cross-ties, and the train could have been stopped within 500 feet.
The deceased was earning $125 per month at the time of his death, and the amount of his contributions to his father and mother was shown to be from $25 to $40 per month; the ages and expectancies of his mother and father were also shown.
The appellant introduced no testimony, and moved for a directed verdict on account of lack of evidence.
The court instructed the jury, and from the judgment against it this appeal is prosecuted.
(after stating the facts). Two errors are assigned for reversal of the judgment, first, for want of proper parties, it being insisted that the mother of the deceased, appellee, was not properly appointed administratrix and not entitled to bring suit; and that the testimony was insufficient to support the verdict.
The statute provides to whom letters of administration may be granted for the survival of causes of action for damages caused by the wrongful act, neglect or default of another, and that such actions shall be brought in the name of the personal representative of such deceased person; such personal representative or administrator being entitled to recover all damages resulting from the wrongful death of the deceased both for the benefit of his estate and the next of kin. Secs. 7-11 and 1074-75, C. M. Digest; Southwestern Gas Electric Co. v. Godfrey, 178 Ark. 103, 10 S.W.2d 894.
Neither is there any merit in the contention that the testimony is insufficient to support the verdict. In St. L. I. M. S. R. Co. v. Gibson, 107 Ark. 431, 155 S.W. 510, this court, in construing the lookout statute, 8568, C. M. Digest, relative to injuries to persons, upon which this suit is based, referred to the decision in Central Ry. Co. v. Lindley, 105 Ark. 294, 151 S.W. 246, construing the same statute relative to the duty to keep a lookout for property upon tracks, said: "We think the construction there placed upon the act applies to persons alike, and that the railroad company now owes he same duty to keep a lookout to avoid injuring the trespasser upon its tracks, and 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 in jury avoided if a lookout had been kept, a prima facie case is made, and the burden of proof then devolves upon the railroad company to show that a proper lookout was kept as required by the statute, and that it used ordinary care to prevent the injury to the person after his discovery in a perilous position in order to escape liability for such injury." See also C. R. I. P. Ry. Co. v. Brain. 110 Ark. 444, 162 S.W. 51; Ib. v. Gunn, 112 Ark. 401, 166 S.W. 568, Ann. Cas. 1916E, 648; Ft. Smith L. T. Co. v. Phillips, 136 Ark. 310, 266 S.W. 453; Kelly v. DeQueen Eastern Ry. Co., 174 Ark. 1000, 298 S.W. 347.
It is true that no eyewitness testified about the injury to the deceased, the railroad company not introducing 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 the "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 on 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 the deceased was struck and killed by the train.
The testimony also discloses that the trains passing along this straight track were equipped with powerful headlights which would have enabled the operatives to see the deceased on or near the track for 1,500 feet had a lookout been kept, and that the train could have been stopped within 500 feet operating at the speed it was traveling under the "slow orders," in ample time to prevent the striking and killing of deceased. Proof of the injury under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided, if a proper lookout had been kept and reasonable care exercised after the discovery of the peril to prevent the injury, made a prima facie case of liability devolving the burden upon the railroad company to show that a proper lookout was kept as required by the statute. This burden was in no wise attempted to be discharged, and the prima facie case warranted the jury in finding its verdict, the testimony being sufficient to support it. Mo. Pac. Rd. Co. v. Green, 172 Ark. 423, 288 S.W. 908; St. L. I. M. S. R. Co. v. Hempfling, 107 Ark. 476, 156 S.W. 171; Ft. Smith L. T. Co. v. Phillips, supra.
We find no error in the record, and the judgment is accordingly affirmed.