This is an action instituted by the children of William Watson, deceased, as heirs at law of said decedent, to recover damages resulting from the killing of said decedent by one of defendant’s passenger trains at Bergman, Ark., on June 27, 1907. The plaintiffs alleged in their complaint that Watson was a widower at the time of his death; that he died intestate, leaving them as his only heirs at law, and that there has been no administration on his estate.
Watson intended to board a passenger train at Bergman, and as it came to the station 'he attempted to cross the track in front of the approaching engine, so as to get to the place where he could board the train when it stopped. The cow catcher or pilot of the engine struck him as he attempted to pass in front of it, and he fell over it and was carried along a considerable distance — probably 100 or 150 feet, when he rolled off, and was drawn under it and carried about 30 feet further. The train came to a stop, and the engine was backed, so as to get him'out, and he was found to be badly injured, and died in about two hours.
The surgeon who was called and saw him immediately after the engine was moved from over him described his injuries as follows: “I found a dislocation of the right hip, and the femur pushed up into his bowels; a dislocation of the exterior end of the clavicle, and it pushed up into his throat; contusions and lacerations about the face and head, and a laceration in the thick muscle part of the thigh, the muscles being torn loose. It was simply a mashing and tearing of the muscles, like you would take a board and saw across the leg, and the openings were filled with cinders, which were ground in until I could not wash them out.”
During the progress of the trial, the action was dismissed as to all the plaintiffs except Annie and Dee Watson, this being done, according to the recitals of the'record, by agreement of all the parties.
The trial resulted in a verdict for the plaintiffs, their damages being assessed separately; and judgment was rendered accordingly, from which this appeal is prosecuted.
The action as originally instituted properly joined as plaintiffs all the heirs at law of the decedent. There being no personal representative of decedent’s estate, the action could, under the statute, be brought in the name of the heirs at law. Kirby’s Digest § 6290. But all of the heirs should have been continued as parties. McBride v. Berman, 79 Ark. 62. The defendant, however, consented to the dismissal of the action by the other plaintiffs, and raised no objection to the right of the remaining plaintiffs to sue. The objection is raised here for the first time, and comes too late. Pettigrew v. Washington County, 43 Ark. 33; Driver v. Lanier, 66 Ark. 126; Hadley v. Bryan, 70 Ark. 197.
There was no evidence which would have authorized the jury in finding that the trainmen were guilty of negligence in striking deceased as he attempted to cross the track. The court, by giving an instruction requested by defendant, took that question from the jury. The language of some of the other instructions seems to indicate a submission of that question, but, when considered with the instruction plainly taking that question away from the jury, the language is, we think, referable to the question of negligence in failing to exercise care to prevent injuring Watson after he fell on the pilot and before he rolled off and was drawn under it. The evidence is that he was uninjured at that time and was carried about 150 feet, and that the trainmen were aware of his perilous position. If there had been any testimony tending to show negligence in failing to stop the engine before Watson rolled off the pilot, there should have been a submission to the jury of the question of negligence in that respect; but we fail to discover any evidence of negligence in that particular. The undisputed evidence is that the train, though approching the station, was going at an unusually rapid rate of speed, and that, as soon as the perilous position of Watson was discovered, all possible means were employed to stop the train. No effort was made on the part of plaintiff to show that the train, while going at that rate of speed, could have been stopped in the space Watson was carried along on the pilot. It was therefore error to submit that question of negligence to the jury.
The other ground of liability set out in the complaint was that the trainmen were negligent in moving the train after it had been stopped over deceased, so as to cause it to strike him and inflict the fatal wound. There was testimony tending to show that, as the engine was moving back over Watson’s body, he was struck by a rod or bolt under the pilot, and that additional wounds were thereby inflicted. In view of the fact .that the judgment must be reversed on other grounds, we deem it unnecessary to decide whether or not the evidence was legally sufficient to sustain a finding that the additional injury caused the death of Watson or contributed to it. On .this point the evidence is so close that on another trial there may be enough difference to change its effect.
The court gave the following instruction over defendant’s objections: “The burden of proof is upon defendant to show that it used reasonable care, caution and skill to avoid injuring deceased after his peril was discovered by its employees,” This was error. We have held in several cases that where the injured person has been guilty of contributory negligence, the .burden of proof is upon the plaintiff to show, in order to recover damages, that the employees in charge of the train discovered his perilous position in time to have avoided injury, and negligently failed to use proper means to avoid injuring him after discovering his peril. St. Louis & S. F. Rd. Co. v. Townsend, 69 Ark. 380; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522; Jones v. St. Louis, I. M. & S. Ry. Co., 96 Ark. 366.
We find it unnecessary to pass on the other assignments of error; but for the errors indicated the judgment is reversed, and the cause remanded for a new trial.