Arkansas & Louisiana Railway Co. v. Graves

• Decision Date: 05 December 1910
• Parties: ARKANSAS & LOUISIANA RAILWAY COMPANY v. GRAVES
• Court: Arkansas Supreme Court

132 S.W. 992

96 Ark. 638

ARKANSAS & LOUISIANA RAILWAY COMPANY v. GRAVES

Supreme Court of Arkansas

December 5, 1910

Appeal from Howard Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, W. V. Tompkins and James H Stevenson, for appellant.

1. The statutory duty to give signals for the protection of persons at highway crossings does not apply to any except public highways, and if, in this case, there was a failure to give signals, it was not negligence. Kirby's Dig. § 6595; 3 Yeates (Pa.) 417, 421; 3 Ore. 97; 8 P. 907; 7 N.Y.S. 289 312; 7 Pick, (Mass.) 162, 164; 3 Elliott, Railroads, 335, § 1158; 64 N.Y. 535; 189 Ill. 559; 62 Md. 479.

2. The use which the evidence shows was made of the place as a crossing did not make it a public or highway crossing, nor give appellant a right thereon. He was a trespasser, or at most a bare licensee to whom the company owed no affirmative duty of warning. 3 Elliott on Railroads, § 1154; 44 Pa.St. 375, 379; 103 Ind. 27; 97 Ky. 228; 42 Ill.App. 93; 49 Ill.App. 232; 189 Ill. 559, 564; 70 Ga. 240, 241.

3. Appellant's own contributory negligence bars recovery. It was his duty to stop and look and listen, and that duty was the more imperative since he knew that there was an engine in motion in the yards. Since he knew this, there was no necessity that he be given formal notice by bell and whistle, nor would the law require it. 2 White on Personal Injuries, § 966; 3 Elliott on Railroads, § 1155; 70 Ga. 207; 84 Ark. 270; 56 Ark. 457; Id. 271; 54 Ark. 431; 62 Ark. 245.

W. P. Feazel, for appellee.

1. If it be conceded that appellee was not on a public crossing where he was injured, appellant was nevertheless under the duty to give the statutory warning, because the train was approaching a public street crossing within a few feet of appellant. 125 S.W. 655. The word road or street does not mean a public highway only. 123 Ill. 570; 5 Am. St. Rep. 559; 98 Am. Dec. 347 and cases cited in note; 90 Id. 55, 67. Where a railroad company has long permitted the public to cross its tracks at a place not a highway, it is bound to use reasonable care towards persons so crossing and to give warning to them so as to protect them from injury. 104 N.Y. 362; 58 Am. Rep. 512; 99 N.C. 298; 6 Am. St. Rep. 512; 45 O. St. 11; 4 Am. St. Rep. and cases cited in note 526; 112 Ind. 250; 109 N.C. 472; 26 Am. St. Rep. 581; 64 Id. 453; 33 Cyc. 924.

2. The question whether or not appellee was, under the facts and circumstances of this case, a trespasser, or was crossing at this point by the sufferance and permission, if not by the implied invitation, of appellant, was for the jury to determine from the evidence. 85 Ark. 331; 94 F. 323; 23 Am. & Eng. Enc. of L., 742; 86 Ark. 184; 77 Ark. 562. If he was not a trespasser, his injury by appellant's train would cast upon it the burden of proving that it was not negligent. 63 Ark. 639; 57 Ark. 136; 53 Ark. 203.

3. In attempting to cross appellant's track, all that the law required of appellee was to look and listen to ascertain if a train was approaching and to exercise such ordinary care and diligence as a man of ordinary care and prudence would have done under similar circumstances to avoid being injured.

OPINION

MCCULLOCH, C. J.

Plaintiff J. F. Graves instituted this action against defendant railway company to recover compensation for injuries alleged to have been sustained by being knocked down by one of defendant's trains while he was crossing the tracks near the depot at Nashville, Ark. Negligence of the company's servants is alleged in failing to keep a lookout, and in failing to give signals by bell or whistle. Plaintiff was crossing a side track at the southwest corner of the depot platform, and was struck by a freight car against which an engine backed and set in motion while being coupled to the train. There was a space there of 18 feet between the platform and a seed house, and the plaintiff adduced evidence tending to show that for many years past people openly and habitually crossed there afoot and with teams without objection from the railway company. There is a street running north and south parallel with the sidetrack, and the evidence tends to show that at the point mentioned the space is used for a crossing from this street to the station platform and to the premises of the company. The space was used, according to some of the evidence, as a means of access to the premises of the company, and this was with the permission, of, or at least without objection from, the company.

Plaintiff testified that the crossing was open, and was used clear across the right-of-way, but all the other witnesses testified that the way was closed on the east side, so that there was no access from that side. The testimony is conflicting as to whether or not there was a crossing on the sidetrack at that place, but there was sufficient to warrant a finding as stated above.

According to the undisputed evidence, there was a public street crossing over defendant's tracks, both the side track and the main track, about 40 feet south of the place mentioned on the south side of the seed house just described. The main track is on the east side of the depot, and the side track is on the west side.

On this occasion a mixed passenger train came in from the south, and, after stopping for a while (Nashville being the northern terminus of the railroad), the engine and two cars were uncoupled from the train and pulled up to a switch north of the depot, and then backed down the side track for the purpose of coupling to two cars standing near the place where plaintiff was injured. Plaintiff was a mail and express carrier, and had come to the depot to meet the train to see about some express which had come for him, and was leaving the premises to go to another railroad depot nearby. In attempting to do so he started across the side track at the place mentioned, and was struck by one of the cars pushed by the backing engine. The corner of the car struck him just as he got across the track. He testified that before going on the side track he "slowed up," looked and listened for an approaching train, but neither saw nor heard one approaching, and proceeded to go across. He stated that he heard the noise of the engine running above the depot, but thought that it was still over on the main line. The depot platform was four or five feet high, and plaintiff testified that a lot of boxes of freight piled on and extending over the corner of the platform obstructed his view to some extent up the side track. The evidence tends to establish the fact that no signals were given, and no lookout was kept.

It is insisted that the evidence does not sustain the verdict in plaintiff's favor in that it fails to establish negligence on the part of defendant's servants, and that it does indisputedly establish contributory negligence on the part of plaintiff. The contention, as to the charge of negligence against defendant in failing to give signals, is that the statutory requirement as to giving signals applies only to legally established public road crossings, and that there is no evidence to show that the place where plaintiff received his injuries was such a crossing. The argument entirely ignores the fact that there was a public street crossing about 40 feet south of the place where plaintiff was struck by the train, that the engine and cars were approaching that crossing, and that the trainmen were then under legal obligation to give the signals for that crossing--that is to say, to keep the bell or whistle sounding until the crossing was reached or the train stopped. Therefore, the point which learned counsel argue with so much earnestness, that the statutory requirements do not apply except to legally established road crossings, is not reached in this case. If the trainmen were guilty of negligence in the particular named, which caused plaintiff's injury, and if plaintiff was not a trespasser, and was not guilty of contributory negligence, then defendant is liable for the damages. St. Louis, I. M. & S. Ry. Co. v. Shaw, 94 Ark. 15, 125 S.W. 654; St. Louis, I. M. & S. Ry. Co. v. Hudson, 86 Ark. 183, 110 S.W. 590.

The evidence tends to show that the place where the plaintiff was injured had for many years--in fact, since the railroad was first put into operation--been openly and notoriously used by the public as a crossing, and that it was used as one of the approaches to the depot platform. Those who used the crossing did so not only by the permission but upon the implied invitation of the company, and the latter's servants owed them the duty of exercising ordinary care to avoid injury. Moody v. St. Louis, I. M. & S. Ry. Co., 89 Ark. 103, 115 S.W. 400; Missouri & N. A. Rd. Co. v. Bratton, 85 Ark. 326, 108 S.W. 518. The plaintiff on this occasion came to the depot on business with the company, and had the right to leave the premises by the route commonly used by the public under permission from the company. He was not a trespasser, and the servants of the company were under duty to exercise care not to injure him while he was crossing the track.

There was also evidence of negligence on the part of the trainmen in failing to keep a lookout while backing the engine and cars down the side track. St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187, 99 S.W. 73.

There was sufficient evidence to justify a submission to the jury of the question whether plaintiff was guilty of contributory negligence. We can not say, as a matter of law that under the evidence adduced he was guilty of negligence. He testified that before he attempted to cross the track he "slowed up," looked and...