St. Louis, Iron Mountain & Southern Railway Company v. Evans

• Decision Date: 23 July 1906
• Citation: 96 S.W. 616,80 Ark. 19
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. EVANS
• Court: Arkansas Supreme Court

96 S.W. 616

80 Ark. 19

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. EVANS

Supreme Court of Arkansas

July 23, 1906

Appeal from Faulkner Circuit Court; George M. Chapline, Judge affirmed.

Judgment affirmed.

Oscar L. Miles, for appellant.

1. The plaintiff must be held to have seen and heard that which was plainly to be seen and heard. 4 Elliott on Railroads, § 1703; 38 S.W. 311; 65 U.S. 697; 62 Ark. 158; 65 Ark. 238.

2. Where the complaint only charges negligence in failing to ring the bell or sound the whistle, it is error to instruct the jury that from the happening of the injury the law presumes that the defendant was negligent in causing the injury, and that a prima facie case of responsibility against defendant was made out. Plaintiff could only recover on the ground set out in the complaint, and the mere happening of the injury creates no presumption that the bell was not rung nor the whistle blown. 4 Elliott on Railroads, § 1644.

3. The purpose of the constitutional provision with reference to the liability of railroads was to give a remedy against the corpus of the property for a liability already determined. 68 Ark. 171.

Sam Frauenthal, for appellee.

OPINION

HILL, C. J.

This action is for personal injuries received by a traveler on a public road crossing a railroad track. The court has had numerous cases of the kind recently. The Hitt cases--St Louis, I. M. & S. Ry. Co. v. Luther Hitt, 76 Ark. 224, 88 S.W. 911, and St. Louis, I. M. & S. Ry. Co. v. Robert Hitt, 76 Ark. 227, 88 S.W. 908-- St. Louis, I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520, 94 S.W. 617, and St. Louis & S. F. Ry. Co. v. Wyatt, 79 Ark. 241, 96 S.W. 376, have called for discussion of the rules governing the respective conduct of the traveler and the operatives of the train at public crossings. This case is free of the difficulties presented in those cases.

Briefly stated, appellee's evidence tended to prove:

A string of wagons, headed by one occupied by Puckett and appellee Evans, left the town of Conway, traveling along the Conway and Quitman public road. About two miles from Conway the highway crossed the track of appellant railroad company at a place called "the Gap." The highway was up grade to the railroad track from a branch, a distance of about 100 yards, until close to the track. For a short distance, some fifteen or twenty steps, before reaching the track the highway is level. To the west the railroad curves around a hill, so that a train from that direction can not be seen until the traveler is almost to the track, and then only to be seen a distance of 50 or 60 yards. Puckett and Evans drove up this grade slowly, stopped on the level ground close to the track, and looked and listened for approaching trains. Evans rose up from his seat, and looked both ways, and both, becoming satisfied that there was no train approaching, slowly drove on the crossing, and continued to watch as they drove on, and were caught by a rapidly moving train from the west coming around the curve. The whistle sounded just before the engine struck the wagon. Evidence of appellee also tended to show that the whistle was sounded at Doty's field, a distance of 160 rods from the crossing, but this was not heard by appellee and his companions on the other side of the hill from that point, and there were no other signals given until the alarm whistle sounded an instant before the engine struck the wagon. Evans and Puckett only saw the train after they were on the track. Puckett was driving, and as soon as he saw the train whipped up his horses, trying to get them across, but was unable to do so. The appellee and some of his witnesses were contradicted by statements in writing made to appellant's claim agent, and appellant's evidence put a different aspect to the case.

1. The first point made is the evidence does not support the verdict. Taking appellee's evidence to be true (and the jury have so found it), it presents a clear case for recovery.

2. The appellant's next point is that the only allegation of negligence is in failing to sound a whistle or ring a bell or give proper warning at a crossing, and that it was error to give an instruction stating that, if the evidence showed that the appellee was injured by the operation of the train, the law presumes the railroad company was negligent, and a prima facie case is made out. That such an instruction is correct has been often decided. See numerous cases cited to that effect in Barringer v. St Louis, I. M. & S. Ry. Co., 73 Ark. 548. Appellant attempts to take the case without the rule by insisting that the presumption can not extend to the particular negligence charged in the...