Railway Company v. Cullen

• Decision Date: 25 April 1891
• Citation: 16 S.W. 169,54 Ark. 431
• Parties: RAILWAY COMPANY v. CULLEN
• Court: Arkansas Supreme Court

16 S.W. 169

54 Ark. 431

RAILWAY COMPANY v. CULLEN

Supreme Court of Arkansas

April 25, 1891

APPEAL from Conway Circuit Court, JORDAN E. CRAVENS, Judge.

Henry Cullen, a boy sixteen years old, was struck by an engine while crossing the track of the Little Rock and Fort Smith Railway Company. This suit was brought to recover damages for injuries sustained by him.

He testified in substance as follows:

I was at Mr. Zindorf's shop when he started to the depot. I came right along behind him. He ran around a box-car on the side track and across the main track right in front of me. I was crossing on the track when the engine struck me and knocked me off. A box-car was standing on the side track and extended out on the crossing about three or four feet. Mr Zindorf crossed before me. I was two or three feet behind him; could almost touch him. I couldn't see the train. I didn't look for it before I ran in behind the box-car or after I got between the side track and main track. I came straight across the track. Just as they whistled, they struck me and knocked me out of my senses. I didn't look because the box-car in the street would have prevented me from seeing if I had wanted to look. I heard no whistle or bell before or while I was going around the box-car that was standing in the street. The train came darting up and struck me without any warning. All the time I was going from Mr. Zindorf's to the track I never looked at the train. I followed along behind Mr. Zindorf. I never looked at the train to see where it was until I got to the corner of the platform. I have good hearing and good eyesight. I heard the whistle when it blew at me. Soon as it whistled it ran against me and knocked me out of my senses. I went straight across the main track after going around the box-car. I didn't stop to see if the train was there. I just went right straight across.

Zindorf testified as follows:

I was at my shop at work, and the boy was with me. I heard the noon train whistle, and I remembered that I had a letter to mail and I picked up my hat and started for the depot to mail it on the train. I told the boy I was going to the train to mail a letter. I started towards the depot, and the boy came along after me. I walked in a brisk walk, and although I didn't look around to see if the boy was following me, still I knew he was there. My shop is about a square east of the street crossing, east of the depot. There was a box-car standing on the side-track, and the end of this car was standing a few feet out over the sidewalk. I walked around the west end of the box-car and started across the main track. I checked myself between the two tracks to see if I could get over before the train came up. I saw I could make it, and ran across the main track only a few feet in front of the engine. I had to jump to make it, but I got across and had taken a few steps towards the depot, when the engine passed me. Just as I was in the act of jumping across the main track, I heard two or three sharp whistles of the engine. I didn't see the engine run against the boy. He was behind me. Just as I had straightened myself up after jumping across the track and had taken a step or so, the boy was knocked off the track by the engine and rolled over in the street, stirring up a big dust. I had forgotten about the boy being behind me when I started across the track. I never heard any bell ringing. I think I would have heard it if it had been ringing. The train was running mighty fast--faster than usual, and faster than I ever saw it coming into town. I could have gotten across the track a little sooner than I did if it hadn't been for the box-car standing across the sidewalk, necessitating me to go around it, which made it a little further for me to go and took a little longer time.

A few moments after the accident, Cullen made this statement to the physician who attended him: "The railroad is not to blame; I am to blame; I just wanted to cross the track; I had no business to cross at that time. I thought I could make it ahead of the train."

There was a verdict and judgment for plaintiff. Defendant has appealed.

Judgment reversed and cause remanded.

Dodge & Johnson for appellant.

1. The plaintiff is barred by undisputed contributory negligence on the part of the injured party. Cullen alone was to blame for the injury.

2. Defendant's servants were only required to keep a careful lookout ahead, and, after discovering a person on the track, to do all that an ordinarily prudent and careful person would do to prevent injury. One who enters upon a track at a crossing, with knowledge of an approaching train, without looking to see whether a train is near, is guilty of contributory negligence, and cannot recover for negligence on the part of the company's servants, unless they saw the plaintiff's danger in time to have avoided the injury, and failed to do so. 36 Ark. 41; 47 id., 497; 46 id., 513.

E. B. Henry and W. L. Moose for appellee.

The jury in this case has passed upon the question of the negligence of the appellant, the issue of contributory negligence, and there is evidence to support their finding. The burden was on the appellant to establish contributory negligence, and this issue the jury resolved against it. 34 Ark. 613. A failure to stop and look is not per se negligence, but an element for the jury to consider. 53 Ark. 202; 42 Am. & E. R. Cases, 160, and notes; ib., 163, 165. Contributory negligence is one of fact for the jury. 28 A. & E. R. Cases, 639; 89 Pa.St. 59-64; 97 id., 55; 107 id., 8; Black, Proof & Pl. Ac. Cases, p. 109. Whether or not a person crossing a highway is negligent in not stopping and looking and listening is for the jury. 28 Wis. 487; 63 Wis. 145; 19 A. & E. R. Cases, 285. The failure of the railway employees to give proper warning may relieve the traveler of the necessity of stopping to look and listen. 35 Pa.St. 60; 47 id., 244; 42 Am. & E. R. Cases, 185-189.

OPINION

COCKRILL, C. J.

A traveler upon the highway is bound to exercise ordinary care and diligence at the...