Blytheville, Leachville & Arkansas Southern Railway Co. v. Gessell

• Citation: 250 S.W. 881,158 Ark. 569
• Decision Date: 07 May 1923
• Docket Number: 361
• Parties: BLYTHEVILLE, LEACHVILLE & ARKANSAS SOUTHERN RAILWAY COMPANY v. GESSELL
• Court: Supreme Court of Arkansas

250 S.W. 881

158 Ark. 569

BLYTHEVILLE, LEACHVILLE & ARKANSAS SOUTHERN RAILWAY COMPANY v. GESSELL

No. 361

Supreme Court of Arkansas

May 7, 1923

Appeal from Mississippi Circuit Court, Chickasawba District; W. W Bandy, Judge; reversed.

Judgment reversed and cause remanded.

Little Buck & Lasley, for appellant.

Assuming that the court will follow the harsh construction of the lookout statute made in 108 Ark. 326, it is still insisted that there was no testimony showing that appellee's peril could have been discovered, had the lookout been kept, in time to have prevented the injury, and the court should have directed a verdict for appellant. Appellee's contributory negligence barred him from recovering for appellant's failure to give crossing signals. 97 Ark. 410; 90 Ark. 21; 149 U.S. 43; 61 Ark. 549; 76 Ark. 231. Both instructions given by the court are erroneous.

Costen & Harrison, for appellee.

The facts in this case are stronger than those in St. L. & S F. Ry. Co. v. Champion, 108 Ark. 326, where the lookout statute was correctly construed. As to the question of contributory negligence on the part of appellee, the facts here are strikingly like those of 138 Ark. 589. See also 115 N.E. 753; 125 N.E. 793; 262 Pa. 421; 105 A. 636; 173 P. 1117. Instruction numbered one was not subject to objections made thereto nor erroneously given. A very similar instruction was approved in 102 Ark. 386; 107 Ark. 431; 105 Ark. 294. Appellant might have been entitled to an instruction more specifically presenting its view, but asked none. 111 Ark. 229; 102 Ark. 322; 78 Ark. 55. Instruction number 2 was given at appellant's request.

OPINION

SMITH, J.

Appellee recovered judgment for damages to compensate an injury done to an automobile truck by being struck by one of appellant railroad company's locomotives. The collision occurred near the city of Blytheville about three o'clock in the afternoon of December 31, 1921.

It was alleged, and there was testimony from which the jury could have found, that no signal was given and no lookout was kept as the engine approached the crossing. It was also alleged that the engine was operated at a dangerous and excessive rate of speed, but the witnesses who testified on this subject stated the engine was running seven, eight or nine miles an hour.

Appellee testified that, when he got within about fifty yards of the crossing, he shoved the clutch into neutral, and then looked to the right and then to the left to see if a train was coming. He saw some empty box-cars on a sidetrack, but no train, and then turned his attention to driving his car across the track. He also testified that he applied his brake as he approached the crossing.

The undisputed testimony shows that, notwithstanding the cars on the sidetrack, appellee had a clear view of the track before driving on it for a distance of a hundred to one hundred and fifty yards in the direction from which the engine approached.

No testimony was offered on behalf of the railroad company, except that developed in the cross-examination of appellee and his witnesses, and the jury no doubt found that the engineer on the locomotive did not keep a lookout nor give signals, and that the driver of the truck was guilty of contributory negligence. After striking the truck the engine ran only four or five car-lengths.

It is apparent from the instructions given that appellee predicated his right to recover upon the amended lookout statute appearing as § 8568, C. & M. Digest. This statute has been construed as imposing upon the railroad company the duty of keeping a constant lookout, and makes the failure to keep this lookout the proximate cause of such injuries as could and would have been averted had the lookout been kept, if the employees in charge of the train could have discovered the peril of the person injured by keeping such lookout in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril, notwithstanding the contributory negligence of the person injured. St. L. & S. F. R. Co. v. Champion, 108 Ark. 326, 157 S.W. 408; St. L. S. W. R. Co. v. Murphy, 125 Ark. 507, 188 S.W. 1180; C. R. I. & P. Ry. Co. v. Scott, 123 Ark. 94, 184...