Louisiana & Arkansas Ry. Co. v. Smith

• Decision Date: 11 February 1943
• Docket Number: No. 12456.,12456.
• Citation: 133 F.2d 436
• Parties: LOUISIANA & ARKANSAS RY. CO. v. SMITH.
• Court: U.S. Court of Appeals — Eighth Circuit

133 F.2d 436 (1943)

LOUISIANA & ARKANSAS RY. CO. v. SMITH.

No. 12456.

Circuit Court of Appeals, Eighth Circuit.

February 11, 1943.

Ben Shaver, of Texarkana, Ark. (A. L. Burford and A. G. Sanderson, Jr., both of Texarkana, Ark., on the brief), for appellant.

W. S. Atkins, of Hope, Ark. (Ned Stewart, of Texarkana, Ark., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

The Louisiana & Arkansas Railway Company brings this appeal from a judgment recovered by Leroy Smith, plaintiff, as damages for personal injuries received in a crossing collision. The accident which gave rise to this suit occurred on a clear day in mid-afternoon of September 17, 1941, when the motor truck which plaintiff was driving, a semi-trailer unit heavily loaded with logs, collided with defendant's southbound freight train at a public crossing about 690 feet south of defendant's depot in Patmos, Arkansas.

Defendant's track runs north and south through the town of Patmos on a right of way 100 feet wide. Located about 60 feet east of this track and parallel to it for a distance of several miles is a public highway. The crossing in question is at a right angle to this highway and provides a way over the tracks to a sawmill which is about 200 feet west of the crossing. About 182 feet north of the crossing is a small structure described as a seed house, and just north of it is a cantaloupe shed, both being about 20 feet west of the track. On the east side of the track, and by measurement 120 feet north of the crossing, stands a telephone pole. It appears that at the time of the accident there were stacked north of the crossing and at a distance of six or eight feet from the east side of the track, about three or four carloads of crossties. The testimony is conflicting as to just how far from the crossing these ties were stacked. No measurements were taken, but none of the testimony placed the ties any nearer than the telephone pole. Some of plaintiff's witnesses fixed the location still farther north and defendant's pictures reflected them as being even farther north than the seed house, which was 182 feet distant. The testimony as to height varied from six to ten feet. There also was evidence to the effect that between the crossing and the depot there is a gradual elevation of the ground which reaches a maximum of from three to five feet above that existing at the crossing, and that the ties were stacked in part upon this rise, thus producing an even higher obstruction to one's vision at the crossing. The civil engineer employed by defendant who made various measurements at the scene of the accident, testified that the ground was level with the top of the rail at the crossing and that the elevation began at a distance of 250 feet from the crossing. He further stated that at a distance of 375 feet from the crossing the natural ground is 3.1 feet higher than the top of the rail.

Plaintiff's own account of the occurrence of the accident was to the effect that he had been driving north on the highway with a load of logs destined for the sawmill. He lived in a house located on the east side of the road about 200 feet south of the crossing. He stopped there to permit his wife, who had been riding with him, to get off the truck. At that time, he said, he looked and listened for trains and saw or heard none. He then proceedeed north to the cross road and turned left to go over the crossing. He stated that at that time he looked in both directions but did not see a train approaching and could not have seen one because of the ties stacked along the right of way. It appears that he was driving at a speed of about 12 miles per hour. He said that the train's whistle did not blow and the bell did not ring and that he did not see the train until the truck was within a few feet of the rail. It was then too late to stop. He turned the truck to the left but the right front wheel went upon the track. It was at that point that the engine hit the truck. The impact of the collision turned the cab around to the left and threw plaintiff to the ground some 20 feet distant. Persons in the immediate vicinity at the time of the accident found plaintiff lying there, seemingly unconscious, and bleeding about the head. He was taken by ambulance to the hospital at Hope, Arkansas, from which he was discharged eleven days later. Plaintiff alleged that he suffered a concussion of the brain, severe strain of the muscles and ligaments of the right arm and shoulder, a severe bruise and laceration of the right cheek and is now suffering from traumatic neurosis which, it appears, is a nervous condition said to result from an injury. He testified that he is now totally disabled, that he suffers with severe headaches, dizziness, impaired breathing and insomnia. A neuro-psychiatrist attending plaintiff testified that his condition is growing worse. This testimony of the severity and extent of his injuries and his present physical condition was, however, contradicted both by the physician in attendance during plaintiff's recovery immediately after the accident and by a nerve specialist called by defendant.

The complaint charged defendant with negligence in the operation of its train, in that (a) the bell was not rung nor the whistle blown on the train as it approached the crossing, as required by the Arkansas statute, Section 11135, Pope's Digest of the Statutes of Arkansas; (b) defendant's train was operated at a high, dangerous and excessive rate of speed, and (c) that defendant's agents and employees operating the train failed to keep a proper lookout for persons crossing its track at the crossing. To this complaint the defendant answered by way of a general denial of negligence on its part and affirmatively alleged contributory negligence on the part of the plaintiff in that, inter alia, he carelessly drove upon defendant's track without exercising due care for his own safety.

The case was tried in May, 1942. At the close of the testimony defendant moved the court for a directed verdict on the ground that the testimony showed the injury alleged was caused by plaintiff's own negligence. After denial of this motion the case was submitted to the jury which returned a verdict in plaintiff's favor for $29,500.00. After entry of judgment defendant moved for judgment notwithstanding the verdict, and in the alternative for a new trial on the ground that the verdict was so grossly excessive as to be the result of sympathy, prejudice or misconception of the evidence by the jury. This motion was denied, but the court found the judgment to be excessive by $12,000.00. Plaintiff then filed a remittitur for $12,000.00. Thereupon the court reduced the judgment to $17,500.00. From this judgment defendant appeals.

It is urged by defendant upon this appeal that (1) the evidence shows the plaintiff's negligence as a matter of law was the sole cause of his injury and that his negligence equaled or exceeded defendant's negligence, if any, and therefore barred recovery by him for his injury; and (2) the verdict was so grossly excessive as to necessitate the granting of defendant's motion for a new trial. From the disposition which we make of this case upon defendant's first contention it becomes unnecessary to consider the second.

In the trial of the case plaintiff relied upon two of its three allegations of negligence; namely, failure to give the statutory signals and operation of the train at an excessive rate of speed. There was a conflict of evidence on both points. Plaintiff's witnesses testified that the train was running at a speed of from 40 to 50 miles per hour, while the engineer, fireman and brakemen on the train fixed its speed at 30 miles per hour. There was no testimony fixing the rate of speed as unusual or excessive. The train crew testified that while the whistle was not blown (the reason given being that the engineer reached for the brake instead of the whistle cord), the automatic bell was ringing. Six witnesses for plaintiff, in addition to himself, who were near the scene of the accident at the time it occurred testified that no signals were given. It is evident that the jury gave credence to the testimony of plaintiff's witnesses.

The Arkansas statute, supra, imposes liability upon railroad corporations for damages sustained by any person by reason of neglect to give the statutory signals. But under certain conditions a failure on the part of the train crew to give such signals is not negligence constituting the proximate cause of the injury. Missouri Pac. R. Co. v. Doyle, 203 Ark. 1111, 160 S.W.2d 856; Missouri...