Missouri Pacific Railroad Co. v. Rogers

• Citation: 43 S.W.2d 757,184 Ark. 725
• Decision Date: 23 November 1931
• Docket Number: 2
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. ROGERS
• Court: Supreme Court of Arkansas

43 S.W.2d 757

MISSOURI PACIFIC RAILROAD COMPANY v. ROGERS

184 Ark. 725

No. 2

Supreme Court of Arkansas

November 23, 1931

Appeal from White Circuit Court; W. D. Davenport, Judge; affirmed.

STATEMENT OF FACTS.

This is an action by W. H. Rogers against the Missouri Pacific Railroad Company, C. E. Cleveland and J. H. Mayes, to recover damages for the death of Rogers' wife, which, he alleges was caused by her being struck and killed by a south-bound passenger train operated by the Missouri Pacific Railroad Company, on which Cleveland was the engineer and Mayes the fireman, while she was walking across the tracks of said railroad company at a public street crossing in the town of Garner, White County, Arkansas. The right of recovery is based upon the common-law negligence of the railroad company in the operation of its trains, and also upon the doctrine of discovered peril.

The line of the railroad runs through the town of Garner in a general direction north and south. There are two main lines of tracks there for the operation of the trains. The north-bound trains run on the right-hand track, and the south-bound trains on the left-hand track. East of the right-hand track there is also a switching or storage track. Between ten and eleven o'clock on the morning of the 26th day of November, 1930, the wife of W. H. Rogers, while walking across the tracks of the defendant railroad company at a public street crossing in the town of Garner, was struck and instantly killed by a south-bound passenger train of the railroad company on which C. E. Cleveland was the engineer and J. H. Mayes, the fireman.

Mrs. C J. Austin was standing on the front porch of a house on the west side of the railroad tracks and saw the accident. There were no obstructions between her and the crossing where Mrs Rogers was struck and killed. Mrs. Austin first heard the roar of the train coming south. She did not hear the whistle blown or the bell rung. At the same time there was a train approaching the station at Garner from the south. Mrs. Austin heard the whistle blowing and the bell ringing on the train coming from the south. The train coming from the north was nearer to her. At the time she first saw Mrs. Rogers, the latter was coming over the crossing from the east to the west side. Witness did not think that Mrs. Rogers ever saw the train that struck her because she was not looking that way. She seemed to be looking at the train from the south. At the time the south-bound train struck Mrs. Rogers, it looked like she just lacked a step or two of being clear of the track. She did not seem to walk any faster, but was walking about as she did when she came upon the track. When the train struck Mrs. Rogers, it carried her below the depot before it stopped. The train was running very fast. Witness went down to where the body of Mrs. Rogers lay, and she was dead when witness got there. Mrs. Rogers lived on the east side of the railroad. Witness first observed Mrs. Rogers as she came upon the crossing where she was killed. She came across the east main track and was almost across the west main track at the time the train struck her. There was nothing to obstruct Mrs Rogers' view, and she could have seen the train coming from the north if she had turned her head that way.

According to the testimony of S. N. Kelley, he lived about 300 feet east of the crossing, and at the time of the accident was at the postoffice. He saw the train coming south from near the crossing which is about one-half a mile north of the crossing where Mrs. Rogers was killed. It whistled for the public crossing one-half mile north of the one where Mrs. Rogers was killed. There was a private crossing a quarter of a mile south of the north public crossing and a quarter of a mile north of the crossing where Mrs. Rogers was killed. Witness did not hear the train whistle any more after it left the north public crossing. He did not hear the bell ring. The train was running fast and was not scheduled to stop at Garner. There is only one public crossing in the town of Garner. Garner is not an incorporated town, and has about 100 or 150 inhabitants. There is quite a lot of traffic at the crossing where Mrs. Rogers was killed; and at this time, on account of gravel being hauled for the highway, there was more than the usual amount of crossing. From the time it whistled for the crossing north of Garner, it would take less than a minute for the train to run down to the main crossing in Garner. There was nothing to obstruct Mrs. Rogers' view to the north. It was a cold day, and there was a pretty strong wind blowing from the north.

E. W. Myrick had been unloading gravel from a freight car just below where the accident happened. The freight car was standing on the east switch line track, and its sides were about four feet high. The car which witness was unloading was north of the public crossing in Garner, and there were four or five gravel cars south of the crossing. Witness was standing in the car looking about at the time of the accident. Mrs. Rogers started across the track. There was a passenger train coming from the north and one from the south. The south-bound train was a little nearer the crossing than the northbound train. The attention of the witness was directed mostly to the train coming from the south because they were looking for a local train to bring in more gravel cars. The train from the south whistled. The train from the north, which struck Mrs. Rogers, did not whistle or ring the bell. There was nothing that would have kept witness from hearing the whistle blow or the bell ring. The witness saw the train just at the moment it struck Mrs. Rogers. At this time the train from the south was whistling. Mrs. Rogers turned her head towards the train from the south before she was struck. When the train struck her, she was just about a step or two from being across the track. Witness estimated that the train was running somewhere from 65 to 75 miles an hour. He was standing up in the gravel car and was about fifty feet from the crossing where Mrs. Rogers was struck. The body of Mrs. Rogers was carried about 150 or 200 feet south of the crossing.

Burl Cowen testified that he was at a garage about 75 or 100 feet from the crossing and saw the train run by which struck Mrs. Rogers. It was going at a rate of about sixty miles an hour. The train crew did not ring the bell or sound the whistle as it approached the crossing where Mrs. Rogers was struck and killed. Witness heard the train from the south whistle. On cross-examination, he stated that he saw both trains and heard the train from the north whistle when it was about a half mile away.

According to the testimony of W. W. Lunsford, he saw the train when it struck Mrs. Rogers. He was south of the crossing, near the main line and switch track, and was hauling gravel. At the time of the accident, he had stepped off of his truck and was standing on the ground. He saw the train coming from the south and heard it whistle. He heard the train whistle from the north and saw Mrs. Rogers start across the public crossing. She was walking along with her coat collar up around her neck, and her head seemed to be a little down. She seemed to be looking straight ahead. She had crossed the east track and was starting to step across the last rail of the west track when she was struck. The train from the north did not whistle any more after witness noticed it whistling a good way up the track. Witness was in the open and could have heard it. The bell was not ringing. The train was running about sixty or seventy miles an hour.

J. L. Bell saw Mrs. Rogers when she was struck and killed. He had started across the railroad crossing and noticed the train coming from the north. He stopped to let the train go by, and his attention was called to a stranger in front of the depot. Just as he looked back again, Mrs. Rogers was coming right across the track at the crossing, and the train struck her just before she got across the track. The train that struck her was not whistling or ringing the bell. There was a train coming from the south at the time, and this train was whistling. Witness was about twenty-five feet from the train when it struck Mrs. Rogers. The train was going very fast.

C. E. Cleveland was the engineer on the train that struck Mrs. Rogers, and had been working for the railroad company forty-three years. The train was running on time on the day of the accident. He is familiar with the crossing north of the depot in Garner. There is a private crossing about a quarter of a mile north of the public crossing in Garner, and a public crossing about a half mile north. When the witness reached the whistle board of Garner, he began blowing the whistle and was keeping a lookout. He did not see the train strike Mrs. Rogers, and did not know that it had done so until he saw an object come out from the front of the engine. Then he knew that he had struck something, and put on the emergency brakes and stopped the train as soon as he could. When he reached the whistling board, he started the whistle and kept it blowing constantly until he passed over the crossing. He also turned the bell on before crossing the private crossing north of the station at Garner and never shut it off until after the train stopped. It was an automatic air bell ringer, and was in good working condition. Witness was on the right-hand side of the engine which was going south. When he got in about sixty feet of the crossing, it would have been impossible for him to see any one start across from the left-hand side of the track. This is on account of the way the boiler is constructed. Witness was keeping a constant lookout, and the track was straight along there.

J. H Mayes was also a witness for the...