Arkansas Central Railway Co. v. Williams

• Decision Date: 17 April 1911
• Citation: 137 S.W. 829,99 Ark. 167
• Parties: ARKANSAS CENTRAL RAILWAY COMPANY v. WILLIAMS
• Court: Arkansas Supreme Court

137 S.W. 829

99 Ark. 167

ARKANSAS CENTRAL RAILWAY COMPANY v. WILLIAMS

Supreme Court of Arkansas

April 17, 1911

Appeal from Franklin Circuit Court, Charleston District; Jeptha H Evans, Judge; affirmed.

Judgment affirmed.

Lovick P. Miles, Thomas B. Pryor and Vincent M. Miles, for appellant.

The court should have directed a verdict for appellant, because of appellee's contributory negligence shown in the evidence. This is a case, according to the uncontradicted evidence, of a traveler approaching a railroad crossing with nothing to obstruct his view or to prevent his seeing an approaching train for three-quarters of a mile in the direction from which it was coming. Had he exercised the care required by law, and exercised his faculties of seeing and hearing, he could not have failed to see and hear the train. 54 Ark. 431; 74 Ark. 372; 82 Ark. 522; 85 Ark. 532.

Jo Johnson, for appellee.

The court should not have directed a verdict. When fairminded persons might reasonably differ on the question of contributory negligence, it is for the jury to determine from the evidence, under proper instructions. 80 Ark. 19; 76 Ark 227; 78 Ark. 520; 79 Ark. 241; 126 S.W. 850; 132 S.W. 992; 133 S.W. 1124; 134 S.W. 315; 90 Ark. 19.

OPINION

FRAUENTHAL, J.

A. J Williams, the plaintiff below, was struck by one of defendant's trains while he was attempting to cross over its railroad tracks at a public crossing, and was painfully and severely injured. In his complaint he alleged that the injury was caused by defendant's negligence, which consisted in failing to give the warning signal by bell or whistle of the train's approach to the crossing as required by section 6595 of Kirby's Digest. Defendant denied the allegations of negligence attributed to it, and pleaded contributory negligence on plaintiff's part as a bar to any right to recover. The trial of the case resulted in a verdict in favor of plaintiff for $ 500, and defendant has appealed from the judgment entered thereon.

It is not insisted on this appeal that the evidence was insufficient to warrant the jury in finding that the defendant was negligent in failing to ring the bell or blow the whistle as the train approached the crossing at which plaintiff was injured, or that the trial court erred in the declarations of law which it gave to the jury, or because of the refusal to give any instruction asked for; nor is it claimed that the amount of the damages returned by the jury is excessive. The sole ground urged upon this appeal why the judgment of the lower court should be reversed is that the undisputed evidence shows that the plaintiff was guilty of negligence which contributed to cause his injury, thereby barring him from recovery.

Somewhat briefly stated, the testimony adduced at the trial on the part of the plaintiff, presented the following case: In the afternoon of September 3, 1909, plaintiff was traveling in a top buggy along a public highway known as the Greenwood & Fort Smith road, and at a point known as Carnall crossing he was struck by one of defendant's passenger trains while he was attempting to cross the track. At that place defendant's railroad runs from west to east, and is situated upon a prairie; but the track runs up-grade back towards the west from this crossing for a distance of about one-half mile, where it runs over an elevation called by some of the witnesses a hill. From this hill down to Carnall crossing the track is straight, and the only obstructions along the railroad were some bushes which extended along the side of the railroad for some distance from the hill towards the crossing. The testimony on the part of the plaintiff tended to prove that, while some of these bushes were not as high as the smoke stack of a locomotive, yet they were of sufficient height to obscure the view of a train when one was so situated that they were within the line of his vision.

The train on this occasion ran from the west to the east, and the plaintiff was traveling in the public road from the northwest to the southeast, but for a considerable distance back from Carnall crossing the highway ran almost parallel with the railroad, so that a train coming from the west was at his back. When he came to a point about fifty or sixty feet distant from the railroad crossing, the plaintiff stopped his horse and buggy and looked up and down the track and listened for a train, and, seeing none, he proceeded to the crossing in order to go over the track. He testified that as he approached the crossing from this point he continued to look up and down the track and to listen for a train, and that he heard and saw no train until his horse had got upon the railroad track. It appears that on each side of the crossing there was a cattle guard, and that the track was elevated somewhat above the public road.

Plaintiff testified that at the moment he saw the train it was, as he thought, about two or three hundred yards distant, and that he was unable to turn his horse on account of the narrowness of the road and the proximity of the cattle guards, and that he endeavored to rush his horse across the track to escape injury. It appears that the train was running down grade at a great rate of speed, and that it struck the buggy in which plaintiff was seated, cutting it loose from the shafts and tugs so that it broke the buggy in pieces and knocked the plaintiff a distance of sixty feet, but did not injure the horse. Plaintiff was severely cut and injured about the head and body, and was carried upon the train back to Fort Smith in an unconscious condition.

It appears from the testimony of the plaintiff that at the point in the public road where he stopped about fifty or sixty feet from the crossing the bushes which extended down for a considerable distance from the hill along the side of the railroad were in the line of his vision of the track, so that it might have obscured the view of the train for some distance down the track from the hill; and it further appears that these bushes may have obscured the view of the train from that point until the plaintiff's horse got on the track, when plaintiff first saw the train.

The testimony on the part of the defendant tended to prove that the railroad track at this place was perfectly straight for a distance of half a mile or more back from the crossing to the hill; and, had the plaintiff looked in that direction at any point in the highway for a distance of several...