We determine whether appellant's evidence was sufficient to overcome the statutory presumption of negligence1 arising from the fact that the dead body of appellee's son was found beside the railroad.
George Penny was killed August 7, 1936. His body was found outside the rails in such condition that reasonable minds would agree he had been killed by a train. For a distance of 25 or 30 feet blood and particles of flesh were found. The track where the tragedy occurred is straight for half a mile in each direction and passes through a wooded area. The right-of-way is inclosed. There is no adjacent foot pathway. The nearest crossing — one in either direction — is half a mile distant.
Presumably Penny was killed by freight train No. 276. It left Camden about 3:30 a.m. From Camden to where the body was found is 10 or 11 miles.
Preceding his death Penny had been in Camden during the afternoon and part of the night. It was stipulated that if called as a witness Evalina Everett would have testified that she went with Penny to the railroad about 1:30 in the morning and saw him start walking north. His mother's home was five or six miles from where the body was later found, and could be reached by either of the two highways, mentioned supra. *Page 71
Counsel for appellee say: "Testimony as to the place where the body was found and the indications of blood and flesh on the track and rails and the condition of the body indicate definitely that he was struck by the engine, and did not fall between the cars."
It is contended by appellant that a stop at Camden for water afforded Penny an opportunity to board the train; that he probably rode to a point between the two crossings, and in trying to get off, accidentally fell and was run over.
Appellee's argument, based upon inferences that might be drawn from testimony of engineer Keltner, is that if a person falls between two cars the body is ordinarily thrown a considerable distance from the rails; that conditions pertaining to Penny's body and circumstances in which it was found were of evidential value and properly went to the jury where the question was whether Penny was killed in consequence of his own miscalculations in attempting to leave the moving train, or was struck by the engine because of inattention of train operatives.
On behalf of appellant there is testimony that Penny was drinking late into the night at Camden; that he was waiting for a freight train; that the train, after stopping for water in the city's outskirts, passed the station slowly on an upgrade (perhaps five or six miles an hour), and that an able-bodied man could board it.
Keltner says he was keeping a lookout. It is suggested that the engineer's statement is qualified by his admission that he had no specific recollection in respect of attention or inattention at the time and place in question. A quotation from the testimony is:
"I was keeping a lookout that night as I passed that location. It is our duty to keep this lookout — to watch for any object on the track. I don't remember that night from any other night, or that particular place from any other place on the road. It is my duty to keep a lookout at all times. That is the reason I say I was keeping a lookout. Outside the rules [requiring such] we keep a lookout for our own safety." *Page 72
On cross-examination the engineer said: "When we are out in the country away from towns and highways we keep a lookout every instant. . . . We never turn our attention to something else. We sit there and watch all the time."
The engineer further testified that when he reached Gurdon about six o'clock the customary examination of the engine was made. There were no indications of blood or flesh on it. If live objects are hit, ordinarily evidence of the contact is left.
Our construction of Keltner's testimony is that he said he was keeping a lookout. It would be unreasonable, after a lapse of three years, to expect him to remember specifically having passed an isolated section on his run at a particular time. It is doubtful if anyone would have believed him if he had affirmed a distinct mental impression of rails, ties and roadbed brought forward through time from the fleeting seconds during which the train was passing the identified point. Keltner's frankness in saying he knew he kept a lookout because it was his duty to do so, that his habits were fixed, and that he knew he was doing his duty, is commendable.
We have often held to be competent the negative testimony of a witness who says he was near the railroad when an accident occurred; that his sense of hearing was not impaired, and that if the train's whistle had been sounded or the bell rung he would have heard it. In principle such testimony is similar to that of the engineer in the instant case. In each illustration there is no recollection of what occurred. There is no consciousness or sensibility of the transaction. Applying the rule of common sense and considering the experiences of mankind, courts say that if a normal person is near a train and does not hear the signals required by law to be given, a jury may conclude that the signals were not given.
By the same rule of reason an engineer who knows he kept a constant lookout may testify that he did keep such lookout, and such evidence may not be arbitrarily disregarded. Of course a jury is not required to believe *Page 73 testimony of this character to the exclusion of or in preference to other reasonable evidence. If the testimony is in conflict, or if challenging circumstances which rise to the dignity of evidence exist, it may, be disbelieved. But it cannot be arbitrarily rejected. A legal presumption is overcome by any substantial testimony.2
In the absence of direct evidence in the case at bar to show how the death occurred, there was only the original presumption that Penny was killed because of the negligence of appellant's agents. Such presumption was at an end when the defendant produced proof that the lookout statute was not being violated.
To reach its verdict the jury, without proof, had to assume that Penny, after leaving the Everett woman, did not board the train; that he walked up the track and was on or near it in a position to be seen by the engineer or fireman, and that he was struck by the engine; that the train operatives were not keeping a lookout; that if attentive to duty they would have discovered the trespasser's perilous position in time to avoid striking him.
The case is controlled by decisions mentioned in the footnote.3
Appellee thinks authority for the judgment is found in St. Louis-San Francisco Railway Company v. Crick.4 There cannot be analogy because certain controlling facts are different. In the Crick Case the railway company did not introduce ". . . any testimony of the operatives of its train." There is this statement in the opinion: "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 *Page 74 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 . . ."
For the error in not instructing a verdict for the defendant, the judgment is reversed. The cause has been fully developed, and it is therefore dismissed.
1 Pope's Dig., 11144.
2 Western A.R.R. Co. v. Henderson, 279 U.S. 639,49 S. Ct. 445, 73 L. Ed. 884; St. Louis-San Francisco Railway Company v. Cole,181 Ark. 780, 27 S.W.2d 992; Missouri Pacific Railroad Company v. Beard, Adm'r, 198 Ark. 346, 128 S.W.2d 697; Missouri Pacific Railroad Company v. Ross, 199 Ark. 182, 133 S.W.2d 29; St. Louis-San Francisco Railway Co. v. Mangum, 199 Ark. 767, 136 S.W.2d 158.
3 St. Louis Southwestern Railway Company v. Pace, 193 Ark. 484,101 S.W.2d 447; Missouri Pacific Railroad Company v. Ross, Adm'r,194 Ark. 877, 109 S.W.2d 1246; Porter v. Scullin et al., Receivers Missouri North Arkansas Railroad Company, 129 Ark. 77, 195 S.W. 17.
4 182 Ark. 312, 32 S.W.2d 815.
Mr. Justice HUMPHREYS and Mr. Justice MEHAFFY dissent.