During the night of July 12, 1908, the dead body of Frank Tucka was discovered on the railway track of the St. Louis, Iron Mountain & Southern Railway Company. Further than stated, the cause of his death is unknown. Mary Tucka, as his administratrix, brought this action against the railway company, and recovered judgment and the defendant appealed.
He was upon the track at the time he was killed. The distance he was at this time on the track in advance of the train killing him before it struck him, or when or how he came upon the track, is not shown. He was a strong, healthy man, in full possession of his hearing and sight, at the time he was killed. He was evidently guilty .of contributory negligence in being so situated at that time.
It has often been held by this court “that no railway company nor any other person can be held liable in an action at law for an injury caused by negligence when the plaintiff in such .action by his own negligence has contributed to the injury, unless it was a wilful injury, or one resulting from the want of ordinarv care on the part of such company or person to avert it after the negligence of the plaintiff had been discovered.” St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 46; Little Rock & Fort Smith Ry. Co. v. Pankhurst, 36 Ark. 371; St. Louis, I. M. & S. Ry. Co. v. Ledbetter, 45 Ark. 250; Little Rock, M. R. & T. Ry. Co. v. Haynes, 47 Ark. 497; St. Louis, I. M. & S. Ry. Co. v. Monday, 49 Ark. 257; Barry v. Kansas City, F. S. & M. Rd. Co., 77 Ark. 401, 404; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522, 525.
The act of April 8, 1891, “makes it the duty of all persons operating trains to keep a constant lookout for persons and property upon the track, and makes the company liable for all damages resulting from the neglect to keep such lookout;” yet it does not relieve any one of the duty to exercise care to avoid danger, and the failure by one injured by a train to exercise it will defeat the recovery of consequent damages. St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235; St. Louis S. W. Ry. Co. v. Dingman, 62 Ark. 245; Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10.
In St. Louis & San Francisco Railway Co. v. Townsend, 69 Ark. 380, 382, it is said: “The burden of proving the facts necessary to show that the deceased was killed on account of the negligence of the appellant and the damages suffered by them rested upon the appellees. When it was shown that he was killed by a train of appellant upon its track, the presumption was that his death was the result of the negligence of the railroad company. Little Rock & Port Smith Railway Co. v. Blewett, 65 Ark. 253. While this fact was proved, the effect of it was avoided by showing that the deceased was lying upon the track of the railroad at the time of his death. St. Louis, Iron Mountain & Southern Railway Company v. Leathers, 62 Ark. 235. He was thereby shown to have been instrumental in causing his own death, and he would not have been killed if he had not been guilty of negligence. It was not incumbent upon the appellant to show that it did not discover his presence upon its track in time to avoid injuring him. By proving that the deceased was guilty of contributory negligence, it established a sufficient defense to bar recovery by the appellees, unless other facts were shown. [Chicago, R. I. & P. Ry. Co. v. Smith, 94 Ark. 524.] It was not necessary for it to prove additional facts to exonerate itself from liability until the effect of the contributory negligence was overcome. This being true, it is clear that the burden was upon the appellees to show that the appellant discovered the deceased upon the track in time to avoid injuring him, ;and wilfully and recklessly killed him, unless it was already shown by the evidence adduced by the appellant.”
“To hold a railroad company liable for the killing of a person by the running of its trains, who was guilty of contributory negligence, it must appear, not merely that the trainmen might, by the use of ordinary care, have discovered his peril, but that they actually observed his peril in time to avoid the injury.” Barry v. Kansas City, Ft. S. & M. Rd. Co., 77 Ark. 401; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522, 525.
Appellee says it was proved that the deceased and many others had for many years used the part of the railway track upon which he was killed as a pathway, and had thereby acquired the rights of licensees thereon. But this did not exonerate him from the perils of his situation while upon the track. The railroad company owed him no affirmative duty of care. Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278, 285. His privileges upon the railway track were not as great as those of the public upon the crossing by a railway of a public highway. In that case the railway company has the right to operate 'its trains over its tracks, and the public has the right to the use of the crossing as a highway, and neither has the right to interfere with the proper use of it by the other. Any one upon it at the time a train has the right to pass over it is a wrongdoer; and if he fails to use the proper precaution to protect himself and is injured, he is guilty of contributory negligence. Sherman v. Chicago, R. I. & P. Ry. Co., 93 Ark. 24. So in this case the deceased had no right to interfere with the trains of the appellant upon its own track. He was there without invitation and at his own peril, and was guilty of contributory negligence. There was no evidence that the appellant discovered him in time to protect him against injury, and his administratrix has no right to recover dámages.
Reversed and remanded for a new trial.