Opinion
No. 4-3108
Opinion delivered October 16, 1933.
1. RAILROADS — DISCOVERED PERIL. — Evidence held to warrant a finding that trainmen knew that two boys were in a box car and that there was a hot box in a car near that in which the boys were, and that it was dangerous to operate a train with a hot box and contrary to rules. 2. RAILROADS — DISCOVERED PERIL — JURY QUESTION. — Whether a railroad was liable under the discovered peril doctrine for injuries to boys riding in a box car with the crew's knowledge but without permission, while the train was being operated with a hot box with the crew's knowledge, held for the jury. 3. RAILROADS — DISCOVERED PERIL. — Under doctrine of discovered peril a duty rests upon the railroad company to take ordinary care not to injure a trespasser when his peril is discovered. 4. RAILROADS — DISCOVERED PERIL — INSTRUCTION. — An instruction imposing on a railroad the duty to use ordinary care to prevent injury to trespassers riding in a box car with knowledge of the crew, if the crew should have known of the hot box, held reversible error.
Appeal from Crawford Circuit Court; J. O. Kincannon, Judge; reversed.
Thos. B. Pryor and W. L. Curtis, for appellant.
Thomas P. Holt and D. H. Howell, for appellee.
These cases were consolidated for the purpose of trial with the result that appellee Hancock recovered judgment for $250 against appellant and appellees Buchanans recovered $500 for the Buchanan estate, from which is this appeal.
The testimony in the cases was sufficient to warrant the jury in finding that appellant knew that Archie Hancock, who was injured, and his companion, Willis Buchanan, who was killed in a train wreck near Van Buren, were in a box car on the train without permission; and in finding that the train crew or some of them knew that a hot box developed on one of the trucks of a car near the one the boys were riding in, and that the crew knew that it was very dangerous to operate a train with a hot box, and contrary to the rules of appellant to do so.
Instancing the sufficiency of the testimony to warrant the jury in so finding, reference is made to that part of the record which reflects that a brakeman discovered the boys in the car and talked to them concerning the movement of the train and when it would arrive in Van Buren; and to that part of the record which reflects that signals were given by a number of persons that the train had a hot box and the signal back from one of the train crew, and the stop signal which was given by the depot agent at Alma. This testimony warranted a submission of the cause to the jury under the doctrine of discovered peril. That doctrine is to the effect that a duty under the law rests upon the railroad company to use ordinary care not to injure even a trespasser when his peril is discovered or known.
All the instructions given to the jury correctly defined this doctrine except No. 10 given at the request of appellee. This instruction imposed the duty upon appellant to use ordinary care to prevent the injury if its agent "should have known of said burning hot box." This was a misstatement of the law of discovered peril and constituted reversible error.
On account of the error indicated, the judgments are reversed, and the causes are remanded for a new trial.
McHANEY and BUTLER, JJ., agree that the case should be reversed, but are of the opinion it should be dismissed, as the discovered peril doctrines has no application to the facts in this case.