Plaintiff brought this suit as administrator of the estate of David F. Evans, deceased, and also as next of kin of said deceased, against the defendant to recover damages on account of the killing of said Evans.
The complaint alleges in substance that Evans was struck and killed by a train of the defendant on the night of July 14, 1907; that it was a starlight night, and that the track was perfectly straight, with the view unobstructed for 'two miles or more east of where Evans was struck and killed by the train; that he and his companion were lying asleep on the north side of the track; that after discovering him defendant’s servants in charge of the locomotive negligently failed to give any danger signals or check the speed of the'train, but recklessly ran into him, thereby causing his death.
The railway company answered, making a general denial, and averred that the death of Evans was caused by his own negligence. After hearing the evidence, on motion of the defendam, the court directed the jury to render a verdict for the defendant, and the case is here on appeal.
David F. Evans and T. B. Falls lived at Galla Creek in Pope County. On the night that Evans was killed, they had been to visit the sister of Falls in Knoxville, Johnson County. They were each about 20 years of age. They desired to return home that night. The night train did not stop' at Knoxville, but did stop'at the Junction about two and a half miles west of Knoxville. They walked toward the Junction, and, it being a warm night, .they stopped to rest. Falls went to sleep eight or ten feet from the north side of the track. Falls woke up and noticed that Evans was lying right up- to the end of the ties. He told Evans to get up; that a train was likely to come along and kill him. He remembered Evans raising up. They were waiting for an east-bound train. The body of Evans was lying nearly parallel with the track, and his head was resting on the end of a tie when Falls told him to get up. His head was towards the east. The train which killed him was going west. Falls did not wake up again until the train had half way passed him. Fie jumped up and looked down the track and saw the engineer’s head sticking out of the cab on the side he was on, looking back. Falls then began to look for Evans, but did not find him. He then went back to Knoxville. The next morning, he and the railroad agent went back and found the remains of Evans a rail or two west of where he was lying when he was hit. The track was straight 900 feet or more east of where the two- boys were lying, and there was nothing to obstruct the view of the engineer. The foregoing was the version given by Falls.
George Embrey testified that hé was the engineer in charge of the locomotive that killed deceased; that he was running about thirty-five miles an hour, and was keeping a lookout for people and stock on the track or right of way; that he did not discover that Evans or his companion were human beings until he was severity-five feet from them; that he made no effort to stop the train because they were in the clear, that is to say, that the train could pass without striking them; that he did not have time to stop -after he discovered that they were human beings; that he made a statement at Knoxville the next day in which he said that he saw two men lying beside the track; that he thought they were in the clear, and thought if ’he blew- the whistle he might scare them, and they would jump on the track.
James Evans, the brother of the deceased, testified that he discovered blood and hair on the right side of the cow catcher which resembled the hair of his brother. The testimony also showed that -a train composed of the number of cars of the one in question, could be stopped with safety to passengers in 200 feet, and when running forty miles an -hour in 400 feet.
We -are of the opinion that it was a question for the jury to determine under the evidence whether or not -the defendant railway company exercised the proper care, after discovering the dangerous situation of the deceased, to avoid injuring him. It is only where the facts are undisputed, and are such that reasonable minds may draw but one conclusion from them, that the question of negligence- is one of law for the court. Of course, under the undisputed facts as disclosed by the record, no reasonable man would say that the engineer could have stopped the train in time to have saved the deceased from injury after he discovered his perilous position, but he might have given an alarm by sounding the whistle. No doubt, the -engineer thought he was acting for the safety of deceased in not giving the alarm signal; for he gives as a reason for not doing so that he feared that it would cause the boy to jump towards the track, and that he was in no danger in the position in which he was when first seen. It is probable that the deceased was not awakened, by the noise of the approaching train; for his companion s-ays that -he was not awakened until the train had half way passed him. If the noise of the approach of the train did not awaken him, it is evident that the engineer is mistaken in saying that he was lying -clear of danger from-the passing train; for he was struck by the cow catcher of the locomotive. On the other hand, if the engineer had sounded the whistle, its sharp, shrill warning might have awakened the sleeping boy, and have caused him instinctively to have rolled away from the train. The locomotives of railroad trains are equipped with bell and whistle for sounding danger signals. We are of the opinion that it was a question for the jury whether or not, under the emergency shown by the testimony, the engineer should have used them for that purpose.
This is in accord .with the rule announced by the previous decisions of this court, and special reference is made to the case of the St. Louis, Iron Mountain & Southern Ry. Co. v. Evans, 74 Ark. 407, as being more nearly applicable to the facts of this case.
The judgment is therefore reversed, and the case remanded for -a new trial.