Chicago, Rock Island & Pacific Railroad Co. v. Kinard
| Decision Date | 05 March 1962 |
| Docket Number | No. 16841 and 16842.,16841 and 16842. |
| Citation | 299 F.2d 829 |
| Parties | CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant, v. Carlton KINARD, Appellee. Carlton KINARD, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Alston Jennings, Little Rock, Ark., made argument for Chicago, Rock Island & Pacific Railroad Company and was on the brief.
Melvin E. Mayfield, El Dorado, Ark., made argument for Carlton Kinard and William I. Prewett, and Bill J. Davis, El Dorado, Ark., were with him on the brief.
Before VOGEL and RIDGE, Circuit Judges, and GRAVEN, Senior District Judge.
Carlton Kinard, plaintiff-appellee in No. 16,841, brought action against the Chicago, Rock Island and Pacific Railroad Company, defendant-appellant, to recover damages by reason of injuries received by him as a result of an accident occurring on February 18, 1960, at approximately 3:40 a. m. when he drove his automobile into the side of a moving freight train on South Washington Street in the City of El Dorado, Arkansas. In addition to compensatory damages of $100,000, plaintiff asked punitive damages in the sum of $50,000. The trial court refused to submit the issue of punitive damages to the jury, instructing on negligence and contributory negligence. The jury returned a verdict in plaintiff's favor in the amount of $3,000. Defendant appeals on the ground that the court erred in refusing its motions for a directed verdict and in failing to enter judgment in its behalf. Plaintiff cross-appeals in No. 16,842, asking that this court affirm the judgment for actual damages but that the case be otherwise reversed and remanded for trial on the single issue of punitive damages. The case was originally commenced in the Circuit Court of Union County, Arkansas. Diversity of citizenship and amount involved justified removal to federal court jurisdiction. The law of the State of Arkansas is controlling.
A resolution of the issues requires that the evidence presented at the trial before a jury be recited here in some detail. A great deal of the evidence was uncontradicted. Where conflicts arise, however, we must take that view which tends to support the jury's verdict in favor of the plaintiff and must accept all reasonable inferences arising therefrom which tend to sustain such verdict. With that in mind we consider the record.
Plaintiff is 27 years of age, married and the father of two children. For the four years preceding the accident he had been employed by the Ellis Watts Service Station and car rental and truck rental agency. On the day preceding the morning of the accident plaintiff had gone to work at ten o'clock in the morning. He got off duty at the service station at approximately nine o'clock that night. Thereafter, by prior arrangement, he went to work in a liquor store across the street where he occasionally helped out. He remained there until closing time, about one a. m. the following morning. Thereafter he and two others went to a restaurant where they had food. According to plaintiff, when they came out of the restaurant "* * * it was snowing and ice, raining and freezing, * * *." They returned to the station, where plaintiff and one of his companions remained talking for some time. When plaintiff decided to leave for home, he got in his car, traveled east on Beech Street for a distance of two blocks, and then turned to his right on Washington. After making the turn on Washington, he was traveling in a southerly direction. He was going at approximately 25 miles per hour. At that time he testified it was "snowing, sleeting, raining, freezing weather". It was necessary to have his windshield wiper on. It was working.
At the point of accident six sets of railroad tracks belonging to the defendant cross Washington Street in an east-west direction. There is a railroad crossing or cross-buck sign north of the northernmost track on the west side of Washington Street for southbound traffic. A like cross-buck was located south of the tracks on the east side of Washington Street for the warning of north-bound traffic. The crossing was not protected by any other warning signs or devices, and there was no flagman posted at the crossing at the time of the accident. The crossing was lighted by clusters of lights on four separate poles with five bulbs in each cluster. Two of the light clusters were located between tracks 3 and 4. There is one light cluster south of track 5 and one north of track 5. Track No. 6, being the southernmost track, is not as well lighted as the other tracks. It is slightly lower than Washington Street, but not enough so as to hide the wheels of the train.
As the plaintiff was proceeding south on Washington Street at a rate of speed of approximately 25 miles per hour, a freight train of the defendant was moving in an easterly direction on the southernmost track at a rate of speed of between three and five miles per hour. A brakeman was walking ahead of the train on foot. Plaintiff was thoroughly familiar with the crossing, having crossed it at least twice daily for a period of two years immediately preceding the date of the accident. The train was struck by the plaintiff's car at a point 244½ feet back from the front of the lead engine. Without engaging in mathematical formulae, it is apparent, considering the respective speeds of the train and automobile, that the train was occupying and moving on the crossing for some considerable time prior to plaintiff's approach.
Billie Marshall Peace, an officer of the El Dorado police department, was on duty at the time. He was a witness to the accident. He first noticed the plaintiff's automobile going south across the intersection of Washington and Elm Streets. Peace had stopped at the intersection of Elm and North Cleveland and intended to make a right-hand turn. It looked to him that the automobile "could have been going at a little fast rate of speed" so he followed it. He was never able actually to determine plaintiff's speed. He followed at a distance of a block or block and a half back of plaintiff's car. At that distance behind plaintiff, Office Peace, in looking ahead, "happened to see something red on the track, and it seems to me like that was a box car, and Mr. Kinard was still going south." Peace was unable to say how far the plaintiff was from the tracks at that time. He testified:
"And at that time I saw this object on the track, and, I don\'t know, I just thought to myself look like he is going to hit it, and I saw his brake lights come on, and he was going straight and I saw those lights angle, and it appeared to me he had stopped or either slid off the road or either hit something and made those lights go to that angle."
He further testified:
On cross-examination, Peace testified:
The defense was premised on a denial of negligence on defendant's part and an allegation that the plaintiff caused or contributed to the accident by his own negligence and that at the time he was under the influence of intoxicating liquor so as to render him incapable of driving in a reasonable and prudent manner.1
Arkansas Statutes Annotated, 1947, § 73-1004, provides:
"* * * In all suits against railroads for personal injury, property damage or death caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured, damaged or killed is of less degree than the negligence of the officers, agents, servants or employees of the railroad causing the injury, damage or death complained of; provided that where such contributory negligence is shown on the part of the person injured, damaged or killed, the amount of the recovery shall be diminished in proportion to such contributory negligence." (Emphasis supplied.)
It was the plaintiff's theory that the defendant had created and maintained a particularly hazardous crossing and that it was negligent in not using a watchman or some other method to warn travelers of the presence of a train on the crossing. Plaintiff contended that while ordinarily a train occupying a crossing is notice to parties approaching in an automobile, , and that this was such a crossing. Supportive of its contention, plaintiff introduced evidence describing the physical situation of the tracks as consisting of the six sets of tracks, widely spaced, necessitating one to look both to the right and left before crossing each individual set of tracks; the sixth track curving in from the southeast in line with a small building which obstructed vision; the tracks being lighted by clusters of flood lights, one of which was on either side of track No. 5, but none south of track No. 6. As to the lighting, plaintiff testified:
"Well, actually under those flood lights there, especially in weather like it being that night, it creates a blind on your windshield, specially those lights hitting on the ice and rain and...
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FDIC v. Deloitte & Touche
...by FirstSouth's own comparative fault, as a matter of law," Mem.Rep. at 9 (emphasis in original), is Chicago, Rock Island & Pacific Railroad Co. v. Kinard, 299 F.2d 829 (8th Cir.1962). In Chicago, Rock Island, the court of appeals vacated a jury verdict in favor of a plaintiff who had drive......
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