Burns v. St. Louis Southwestern Ry. Co.

• Decision Date: 10 June 1905
• Citation: 88 S.W. 824
• Parties: BURNS v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Arkansas Supreme Court

88 S.W. 824

BURNS v. ST. LOUIS SOUTHWESTERN RY. CO.

Supreme Court of Arkansas.

June 10, 1905.

Appeal from Circuit Court, Monroe County; Geo. M. Chapline, Judge.

Action by Burns against the St. Louis Southwestern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

On the 14th day of October, 1901, appellant was conducting a hay, farming implement, and lumber business at Stuttgart. This business brought him often to appellee's depot at Stuttgart, where he had barns on each side of the numerous switches of appellee at the depot, and wagon scales between the barns, where hay and other farm products were weighed. He often daily passed over the many switches, as well as the "main" and "passing" track at the depot. On the day appellant was injured, to use the language of his counsel in describing the injury: "He had just left the depot, and saw a train standing just northeast of the depot at the tank, and knew that it could not get on the `passing' track until it came 30 steps south of the depot, and about the time said freight train reached said passing track he turned round and looked at it, and saw it turn, as he thought, on the passing track which he was then on, as it was the custom of trains of that kind to do. He was familiar with the different trains on the Cotton Belt Railroad. Some are local freight trains, and some are through freight trains, and there are 15 or 20 passing during the day. Now, he walked down the passing track for some distance, which was the common walkway, and, hearing the train move rapidly, thought it would be safer to step over on the main track and be further away, so it could pass. Now, he used his eyes, and he thought he saw it go on the passing track, as it was the custom of that class of trains to do so." The train ran him down while he was on the main track, injuring him severely. He brought suit, setting out in minute details the situation at the depot of the houses, trains, tracks, and all the circumstances of the unfortunate occurrence. His specifications of negligence were that the train was running at an unusually rapid speed—at least 14 miles per hour—when it should have been running not exceeding 4 miles per hour in obedience to the city ordinance; that the men in charge of the train were not keeping a constant lookout—had they done so, they could have prevented the injury; that on account of the unusual speed the train could not be stopped after appellee's servants discovered his situation, whereas it might have been stopped after seeing him, had the train been running not more than 4 miles per hour, as required by the ordinance, etc. The answer denied all material allegations, and set up contributory negligence. After the evidence was in, the court, at the request of appellee, directed a verdict in its favor.

H. A. Parker, J. R. Parker, and C. E. Pettit, for appellant.

S. H. West and J. C. Hawthorne, for appellee.

Continental Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403; Ry. v. Houston, 95 U. S. 697, 24 L. Ed. 542; Schofield v. Ry., 114 U. S. 615, 5 Sup. Ct. 125, 29 L. Ed. 224; Ry. v. Blewett, 65 Ark. 235, 45 S. W. 548; Brennan v. Delaware Railroad, 83 Fed. 124, 27 C. C. A. 418; Tucker v. Baltimore Ry. Co., 59 Fed. 968, 8 C. C. A. 416.

WOOD, J. (after stating the facts).

It is unnecessary to discuss the evidence at length. The appellant was guilty of contributory negligence, according to the undisputed facts, and it was the plain duty of the court to declare, as matter of law, that appellant had no cause of action.

On the question of contributory negligence this was the testimony of appellant himself, as abstracted by his counsel: "He started from the depot to go to a pair of scales to weigh a load of hay, and he was on what is called the `passing track,' and, remembering that a freight train was at the tank just...