{ "id": 8725249, "name": "Missouri Pacific Railroad Company, et al., v. Ross, Administrator", "name_abbreviation": "Missouri Pacific Railroad v. Ross", "decision_date": "1937-10-25", "docket_number": "4-4760", "first_page": "877", "last_page": "883", "citations": [ { "type": "official", "cite": "194 Ark. 877" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "101 S. W. (2d) 447", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 484", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411116 ], "opinion_index": 0, "case_paths": [ "/ark/193/0484-01" ] }, { "cite": "21 S. W. (2d) 611", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "180 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1393453 ], "opinion_index": 0, "case_paths": [ "/ark/180/0413-01" ] }, { "cite": "156 S. W. 171", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "107 Ark. 476", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344033 ], "opinion_index": 0, "case_paths": [ "/ark/107/0476-01" ] }, { "cite": "162 S. W. 51", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "110 Ark. 444", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337075 ], "opinion_index": 0, "case_paths": [ "/ark/110/0444-01" ] }, { "cite": "166 S. W. 568", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "112 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1538801 ], "opinion_index": 0, "case_paths": [ "/ark/112/0401-01" ] }, { "cite": "158 S. W. 139", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "108 Ark. 396", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342298 ], "opinion_index": 0, "case_paths": [ "/ark/108/0396-01" ] }, { "cite": "155 S. W. 510", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "107 Ark. 431", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344009 ], "opinion_index": 0, "case_paths": [ "/ark/107/0431-01" ] }, { "cite": "168 S. W. 135", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "113 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1537576 ], "opinion_index": 0, "case_paths": [ "/ark/113/0353-01" ] }, { "cite": "195 S. W. 17", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "129 Ark. 77", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580445 ], "opinion_index": 0, "case_paths": [ "/ark/129/0077-01" ] }, { "cite": "65 S. W. (2d) 539", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "188 Ark. 302", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1428394 ], "opinion_index": 0, "case_paths": [ "/ark/188/0302-01" ] } ], "analysis": { "cardinality": 661, "char_count": 13018, "ocr_confidence": 0.519, "pagerank": { "raw": 4.2153076152477026e-07, "percentile": 0.9137727720805344 }, "sha256": "a6dfee3ea63fb7d84986f5dbcff82f0a1e4c47f28c2192e24eacdb4d42b02953", "simhash": "1:4c617dd2ac62d477", "word_count": 2289 }, "last_updated": "2023-07-14T19:32:46.346325+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Humphreys and Mehafey, JJ., dissent." ], "parties": [ "Missouri Pacific Railroad Company, et al., v. Ross, Administrator." ], "opinions": [ { "text": "GrRiEEiN Smith, C. J.\nAppellee, as administrator of the estate of his son, Odis Ross, brought this suit in the Hot Spring Circuit Court, alleging that his intestate was killed because of the negligence of appellant.\nThe principal question involved is whether there was any substantial evidence to sustain the jury\u2019s verdict.\nOdis Ross was last seen alive on tlie night of December. 19, 1935. His dead body was found at eight o\u2019clock the following morning. It was on the main line of appellant\u2019s railroad about two miles south of Donaldson, near Victor\u2019s Spur. When the body was found it was lying at the end of the ties parallel with the rails. The track was straight for a long distance in each direction and the roadbed was upon a dump six or eight feet high. There were no signs of footprints near the scene to indicate that Ross had climbed upon the track. It was customary for pedestrians to travel on a dirt road as far south as Victor\u2019s Spur, then get on the railroad. Appellant\u2019s right-of-way is fenced, and the wagon road is on the outside of the fence. There was a crossing at Victor\u2019s Spur, but it was closed with a gate.\nThe night of December 19-20 was cold, and the ground was frozen on the morning- of the 20th. Blood, apparently penetrating- the ground to a depth of three or four inches, was found by the body near the end of a crosstie. There was a hole in deceased\u2019s head, and an arm was broken. No blood was found other than that near the end of the crosstie, and there was no' indication that the body had been dragged.\nThere is testimony that just before dark on December 19 Ross was at the home of Tom Brown half a mile north of Victor\u2019s Spur, and left, saying he was going to Jasper Collins\u2019 home, five miles away, near the railroad. He was seen on the dirt road about halfway between Brown\u2019s and Victor\u2019s Spur. Witnesses who met Ross, said that he stepped out of the road to let them pass, as a normal person would have done. There was testimony that, prior to leaving Brown\u2019s house, Ross had been drinking.\nAppellant\u2019s testimony was that a lookout had been maintained as to all trains passing Victor\u2019s Spur between five o\u2019clock of the afternoon of December 19 and eight o\u2019clock of the morning of the 20th, and that the headlights on these trains gave proper illumination.\nEngineer Bryant testified that he passed Victor\u2019s Spur at 5:45 on the evening of December 19. About halfway between Donaldson and Victor\u2019s Spur be saw a man run across tlie track 300 feet ahead of the engine. Witness looked out of the cab and watched the man cross, then looked down on the right side of the engine and saw a man standing in the ditch near the track. This man had a stick in his hand. Witness did not ring the bell or blow the whistle, because it was not necessary. The testimony of Fireman Kelley was substantially the same as that given by Bryant.\nAppellee, for affirmance of the case, relies upon Missouri Pacific Rd. Co. v. Grady, 188 Ark. 302, 65 S. W. (2d) 539, and Porter v. Scullen, et al., 129 Ark. 77, 195 S. W. 17.\nIn the Porter case it was alleged that \u201cPlaintiff\u2019s intestate was walking* upon the tracks of the defendant railway company * * # and while thus engaged the defendant company through its agents, servants and employees, negligently and carelessly and without keeping a proper lookout for people upon its said track or right-of-way, ran the train over its said track without ringing its 'bell or blowing the whistle of the engine, and ran over and so badly injured and wounded the said intestate that he lived only a short time after being struck by the train. \u2019 \u2019\nThe answer Avas' a denial of negligence. There was a trial before a jury. Trainmen Avere not called as Avit-nesses. After the evidence was introduced the court directed a verdict in favor of the defendant. The only question considered on appeal was whether the evidence was legally sufficient to warrant a submission to the jury.\nIt is true, as appellee says in his brief, that in \u2019the opinion there is a finding that \u201cThe evidence with respect to the situation of the body and the condition it was in warrants the conclusion that the man Avas struck by the train and killed. \u2019 \u2019 This is true in the instant ease, although the circumstances are not as strong here as they were in the Porter case. But Chief Justice McCulloch; in his opinion affirming the Porter judgment, said: \u201cWe are of the opinion that the eA\u00dadence Avas insufficient to make out a case against defendants, and that the court was correct in giving a peremptory instruction. It devolved upon the plaintiff, in order to make out a case, to show that if the proper lookout had been kept the presence of the deceased in a perilous position on or near the track could have been discovered in time to prevent the killing * * *. The testimony adduced fails to show that the presence of Porter could have been discovered if a lookout had been kept. It fails to show Porter\u2019s situation and attitude at the time he was struck by the train. \u2019 \u2019\nThe opinion is authority for the rule, often announced by this court, that while testimony of an eyewitness is not necessary to prove that a person or property was struck by a train, and circumstantial evidence may establish the fact, yet the finding of an injured body or damaged property in circumstances justifying a belief that such injury or damage was caused by a train, is not sufficient, alone, to fix liability. There must be evidence that if a proper lookout had been kept \u201cThe presence of the deceased in a perilous position on or near the track could have been discovered in time to prevent the killing.\u201d\nIn the Grady case the opinion contains an express finding that \u201cAll the circumstances indicated that the man who was killed was struck while walking on the track. \u2019 \u2019\nA very clear and concise discussion of the lookout statute is found in Russell v. St. Louis S. W. Ry. Co., 113 Ark. 353, 168 S. W. 135. After citing St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510; Burch v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 396, 158 S. W. 139; Chicago, R. I. & P. Ry. Co. v. Gunn, 112 Ark. 401, 166 S. W. 568; and Chicago, R. I. & P. Ry. Co. v. Bryant, 110 Ark. 444, 162 S. W. 51, the opinion says:\n\u201cThese cases construe the lookout statute to mean that \u2018upon 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 has been made.\u2019 But there must be some evidence, and not mere conjecture or spec^ ulation, 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 recovery do 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 citizens standing at the depot that they observed the train\u2019s approach to the station and did not see anyone 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, 156 S. W. 171, and cases there cited.\u201d\nThere is no circumstance in the instant case to shed substantial light upon the principal unknown fact: That is, what position, or attitude, or condition, was Eoss in when the tragedy occurred?\nWe are asked to say (1) that when the body was found as related by witnesses, the conclusion necessarily followed that Ross was killed by a train; and (2) that attending circumstances were sufficient to satisfy the rule that every verdict must be sustained by some substantial evidence, either direct or circumstantial. If this be conceded, still the question remains unanswered, Upon what testimony did the jury predicate a finding that the .statutory duty of care was disregarded? The track in each direction was straight for several miles. All firemen and engineers swore that lookouts were being kept. This testimony is not disputed by any of the witnesses \u2014 and headlights were sufficient. If, with the lookout being maintained, physical surroundings and attending conditions were such as to negative any explanation of the tragedy other than the supposition that Ross was walking on or near the track, then we might say the jury was justified in disregarding testimony of appellant\u2019s agents as to the measure of care, and such action would not be arbitrary. But no such case has been made out. To admit this would be to say that there is a conclusive presumption that Ross was walking on or near the track, in the glare of a brilliant headlight, and that negligence alone was responsible for the fact that his presence in such place of peril was not discovered. There is no such conclusive presumption. Such a rule would exclude every other reasonable means which might have caused the tragedy. As was said in the Russell case, \u201cConjecture and speculation, however, plausible, cannot be permitted to supply the place- of proof.\u201d Neither may a jury capriciously disregard the reasonable testimony of witnesses in order to give substance to a fanciful theory, for in St. Louis-S. F. R. Co. v. Williams, 180 Ark. 413, 21 S. W. (2d) 611, we said: \u201cAs there was no fact or circumstance in evidence substantially contradicting the testimony of the engineer, it was an arbitrary act on the part of the jury to disregard it.\u201d\nIn St. Louis-San Francisco Railway Co. v. Pace, 193 Ark. 484, 101 S. W. (2d) 447, a case very similar to the one now being considered, we said:\n\u201cThere was no personal testimony as to any negligence. On the contrary, appellant\u2019s servants consistently insisted that no one was on the track. The circumstances opposing these assertions is that the headlights were sufficiently powerful to have disclosed the presence of a man in time for effective application of the brakes, if he had been standing or walking.\n\u201cIn order to sustain the verdict, it would be necessary to wholly disregard the testimony of appellant\u2019s servants and to hold that the mere finding of a mangled body on a track over which trains had been recently operated, coupled with the admission by appellant that it maintained efficient headlights, would establish a prima facie showing which could not be overcome by the reasonable testimony of men who controlled the train. The testimony of one of appellee\u2019s own witnesses that Pace was \u2018tipsy\u2019 shortly before leaving .Bono, and the showing in physical facts that no parts of the body were between the rails, are circumstances from which it might be inferred that the unfortunate man was sitting or reclining on the outside of the rails, and that reasonable diligence upon the part of the engineer would not have disclosed his presence.\n\u201cWhatever the facts may have been as to the situation of appellee\u2019s intestate at the time he was struck, there was not sufficient evidence upon which to predicate a finding of negligence without arbitrarily disregarding testimony of witnesses in favor of a theory equally hypothetical. We conclude, therefore, that the prima facie showing made by appellee was overcome by the testimony of appellant\u2019s servants, which was contradicted only by inferences based upon speculation.\u201d\nUnder the rule in Porter v. Scullen, et al., Russell v. St. Louis S. W. Ry. Co., and St. Louis-San Francisco Ry. Co. v. Pace, supra, and others of similar import, the judgment in the appeal now before us is reversed and the cause dismissed.\nHumphreys and Mehafey, JJ., dissent.", "type": "majority", "author": "GrRiEEiN Smith, C. J." } ], "attorneys": [ "B. E. Wiley and Richard M. By cm, for appellants.", "F. D. Gosa and Ed F. McDonald; Jr., for appellee." ], "corrections": "", "head_matter": "Missouri Pacific Railroad Company, et al., v. Ross, Administrator.\n4-4760\nOpinion delivered October 25, 1937.\nB. E. Wiley and Richard M. By cm, for appellants.\nF. D. Gosa and Ed F. McDonald; Jr., for appellee." }, "file_name": "0877-01", "first_page_order": 895, "last_page_order": 901 }