Summary
In Railroad Co. v. Dyer, 35 Ark. 360, the following rule is stated: "The widow is entitled to the possession of the whole homestead of her deceased husband and is the proper party to bring an action for trespass in entering upon and using it. The heirs may sue separately, in case, for a permanent injury to the freehold resulting from the trespass."
Summary of this case from Casey et al. v. MasonOpinion
No. 27,003.
Filed May 11, 1938. Rehearing denied September 27, 1938.
From Gibson Circuit Court; A. Dale Eby, Judge.
Action by Russell W. Dyer, administrator of the estate of Margaret Warner, deceased, against The New York Central Railroad Company for the death of plaintiff's decedent when an automobile in which decedent was riding ran into the side of a passing train at a highway crossing. From a judgment for plaintiff, defendant appealed. Transferred from the Appellate Court under § 4-218 Burns 1933. Reversed.
Carl M. Gray, Morton C. Embree, Charles O. Baltzell, Harry M. Quigley, Samuel W. Baxter and Charles P. Stewart, for appellant.
McDonald McDonald, Lockyear Lockyear, David A. Myers and R. Owen Williams, for appellee.
At about 3:00 o'clock in the morning, Margaret Warner and her husband were returning to their home in the city of Petersburg. At a highway crossing, within the city limits and with the location of which they were both thoroughly familiar, their automobile, which Mr. Warner was driving, collided with the side of a freight train, which was passing over the crossing, and both were killed. The highway was paved, and the warning signs were substantially the same as those described in New York Central Railroad Co. v. Casey, ante 464, decided at this term. The appellee brought this action against the appellant to recover damages for the death of Mrs. Warner, charged to have been due to appellant's negligence. It is not charged that appellant violated any statute. The theory of the complaint is similar to that in the case referred to. There was judgment for the appellee.
We need not notice specifically the errors assigned. The facts are in all substantial respects like those in the Casey case, and, as in that case, no negligence on the part of the appellant was established. The essential facts are not in dispute, and will not change.
Upon authority of New York Central Railroad Co. v. Casey, supra, the judgment is reversed, with instructions to enter judgment for the appellant, defendant.