St. Louis & San Francisco Railroad Co. v. Carr

• Citation: 126 S.W. 850,94 Ark. 246
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CARR
• Decision Date: 07 March 1910
• Court: Supreme Court of Arkansas

126 S.W. 850

94 Ark. 246

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CARR

Supreme Court of Arkansas

March 7, 1910

Appeal from Crawford Circuit Court; Jephtha H. Evans, Judge reversed.

STATEMENT BY THE COURT.

This was an action to recover damages for a personal injury which the plaintiff alleged he sustained at a public crossing over defendant's railroad track in the city of Fort Smith Ark. The plaintiff testified that about ten o'clock on the night of January 22, 1909, he was traveling on foot along a public wagon road or street which ran across the defendant's railroad track in said city; that when he got to within about thirty feet of the track he noticed a freight train going north along the crossing and towards the depot which was about one mile from the crossing. He proceeded up nearer the crossing, and there stopped somewhat close to the track and waited a few minutes for the freight train to clear the crossing so that he could pass over. There was a number of box cars in the train, and several of these passed by him as he stood waiting for the train to clear the crossing. He was on the west side of the track, and was looking towards the north, the direction in which the train was moving, when he heard a noise, and turning saw a door or other object projecting from the train; the door or projecting object struck him on the head before he could dodge it and knocked him down, rendering him unconscious and causing him to fall so that his legs were caught under the moving train. He was cut severely on the left side of his head, and his legs were injured to such an extent that they had to be amputated, one above and the other below the knee. Some time after the freight train had passed, a passenger train arrived over this track from the south; and the employees hearing his cries went to his assistance and took him on the train. All the employees of the crew on the freight train testified that they did not see the plaintiff, and did not know that he was injured until long after the occurrence, when they were told of it. They also testified that the freight train had left Paris, Texas, a distance of about 160 miles from Fort Smith and that they had inspected the cars at every stopping place from that point, the last of which was fourteen miles from Fort Smith. They stated that there was no car in the train from the last station, which had a swinging door, but that all the doors of the cars were upon slides; that when the cars were last inspected at the above station the doors were found in good condition, and that neither the doors nor any other object was projecting from any of the cars. No person other than the plaintiff testified to seeing the injury when it occurred.

At the request of the plaintiff the court instructed the jury, in substance, that if the plaintiff was at a crossing of a highway over defendant's track at Fort Smith in the night time, intending to cross the track on the highway, and a train of defendant, going north, prevented him from doing so, and while waiting for the crossing to be cleared he was struck by a car door negligently left open and thereby injured, the plaintiff should recover, if at the time he was exercising ordinary and reasonable care for his own safety; and instructed, in effect, that, if the injury did not occur at the public crossing, the jury should find for defendant. The court at the request of plaintiff, amongst other instructions, gave the following:

"7. If plaintiff was wanting in ordinary and reasonable care for his own safety, and was thereby injured, he cannot recover. Or, if the defendant was in the exercise of ordinary and reasonable care as herein defined, then plaintiff cannot recover.

"Plaintiff was not, however, in order to exercise ordinary care for himself, required to anticipate negligence on the part of defendant, if such negligence existed, but might presume that defendant would not be negligent."

At the time of the giving of this instruction the defendant made a specific objection to the latter portion thereof.

The defendant requested the court, amongst other instructions, to give the following, which were refused:

"2. I charge you that a railroad company owes no duty to one walking on its track or near its track, other than not to wantonly injure him after discovery. If you find from the evidence that the employees in charge of the freight train [which] passed going north about 10:40 P. M., on January 22, 1909, did not see the plaintiff, you will find the issues for the defendant."

"10. If you find that the cars were inspected at Jenson, fourteen miles from the injury, which was the last stop of the train before the injury, and found to be in perfect condition, and you further find that it was out of condition at the time of the injury, and you further find that none of the trainmen had any knowledge of any such defect, or of any break after such inspection and before the injury, then the defendant would not be guilty of any negligence."

A verdict was returned in favor of the plaintiff, and the defendant prosecutes this appeal.

Judgment reversed and cause remanded.

W. F. Evans and B. R. Davidson, for appellant.

1. No negligence is shown on the part of appellant to warrant the submission of the case to the jury. 81 Ark. 368; 15 Am. Neg. Rep. 329; 153 F. 845; 111 Fed 586. A railroad company does not owe to a pedestrian the duty to have its car doors so secured as that they can not possibly fly open. Hence in this case no negligence is shown as to the proximate cause of the injury which would warrant its submission to the jury, 17 Am. Neg. Rep. 206. Under no circumstances did appellant owe to appellee more than the duty of ordinary inspection. 85 Ark. 460. By appellee's own testimony he was guilty of contributory negligence. 56 A. 613; 80 Ark. 186; 82 Ark. 522; 69 Ark. 135; 61 Ark. 549.

2. The seventh instruction is clearly erroneous. One going upon a railroad track or in close proximity to it has no right to presume that the defendant would not be negligent, but, on the contrary, it was incumbent upon him to look out for his own safety. 131 F. 837; 95 U.S. 697; 114 U.S. 615; 62 Ark. 245; 56 Ark. 271; 9 Rose's Notes, 328.

3. The second instruction requested by appellant should have been given. If appellee was a trespasser, appellant owed him no duty except to avoid wantonly injuring him after discovering his peril. 90 Ark. 398; 88 Ark. 172; 83 Ark. 300; 82 Ark. 522; 80 Ark. 186; 77 Ark. 401.

Rowe & Rowe and C. A. Starbird, for appellee.

1. Proof of the injury and that it was caused by the running of appellant's trains was proof of negligence on the part of appellant. Art. 17, § 12, Const.; Kirby's Dig., § 6773; 87 Ark. 581; Id. 308; 83 Ark. 217; 82 Ark. 441; 81 Ark. 275; 65 Ark. 235. The question of contributory negligence on the part of appellee was, under the circumstances of this case, a question for the jury. 52 Ark. 368; 63 Ark. 636; 70 Ark. 481; 74 Ark. 610.

2. The seventh instruction given was correct. 37 Ark. 563.

OPINION

FRAUENTHAL, J., (after stating the facts).

It is urged by counsel that the defendant had the right to use its track at the crossing, and that it only owed the duty to plaintiff not to injure him after having discovered his position of peril. But the rule relative to the liability of a railroad company for an injury done after a discovered peril is not applicable to the facts of this case, as adduced on the part of the plaintiff. For, according to the evidence of the plaintiff, he was a traveller in a public highway at the crossing of the defendant's track, and in such case he was not a trespasser or licensee on defendant's right-of-way, but he had the right to use the highway crossing. It is true that the railway company had also the right to the use of its track over the highway crossing. Where the railroad is situated upon a highway, the public has the right to use the highway as well as the railroad, and each must make reasonable and proper efforts, with due regard to the rights of the other and in view of all the circumstances, to foresee and avoid collision. And in such a case it is the duty of the railroad company to exercise ordinary care and prudence in the operation of its trains and otherwise to prevent injuring a traveller. The traveller should observe all the requirements of ordinary care; to him the track itself is a warning of danger, and he is under the duty to exercise precaution to inform himself of the proximity of the train and to exercise ordinary prudence in avoiding injury.

In the case of St. Louis, I. M. & S. Ry. Co. v Neely, 63 Ark. 636, 40 S.W. 130, the railway company was operating its freight train along a street in the town of Warren, and while the train was passing Neeley in the street a car door fell from its place in the car and injured him. In that case it was held that "the railroad company owed him the duty to employ reasonable care to avoid injuring him." In St. Louis S.W. Ry. Co. v. Underwood, 74 Ark. 610, a pedestrian...