Chicago, R. I. & P. Ry. Co. v. Batsel

• Decision Date: 23 October 1911
• Citation: 140 S.W. 726
• Parties: CHICAGO, R. I. & P. RY. CO. v. BATSEL.
• Court: Arkansas Supreme Court

140 S.W. 726

CHICAGO, R. I. & P. RY. CO. v. BATSEL.

Supreme Court of Arkansas.

October 23, 1911.

Appeal from Circuit Court, Monroe County; Eugene Lankford, Judge.

Action by T. J. Batsel against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thos. S. Buzbee and Geo. B. Pugh, for appellant. Manning & Emerson, for appellee.

FRAUENTHAL, J.

This was an action instituted by the plaintiff below to recover damages for personal injuries which he sustained by being struck and run over by one of defendant's trains at a public crossing in the city of Brinkley. The jury returned a verdict in his favor, and assessed his damages at $17,000. From the judgment entered upon that verdict the defendant has prosecuted this appeal. In its motion for a new trial it sets forth a number of grounds why the judgment should be reversed, but on this appeal it only presses the following: (1) Because there is not sufficient evidence to warrant a recovery in favor of the plaintiff; (2) because the court erred in certain rulings made by it relative to the instructions; (3) because the court erred in permitting the introduction of certain incompetent testimony; (4) because the verdict is excessive.

The plaintiff was struck by one of defendant's trains while he was crossing the railroad track in a public street in the city of Brinkley, known as New Orleans avenue. The defendant contends that the evidence is not sufficient to justify a recovery in favor of plaintiff because (1) he was a trespasser upon its property, and there is no proof that the defendant or its employés could have avoided the injury after discovery of his perilous situation on or near the track; and (2) because the plaintiff was guilty of negligence contributing to the cause of the injury.

The plaintiff was a carpenter and millwright, and had gone to Brinkley a few months prior to the time he sustained this injury, and was engaged in rebuilding a mill that had been destroyed by a cyclone which visited that city about that time. With his family, he was living in a tent upon a vacant block in the center of the business section of the city. This block adjoined New Orleans avenue on its west, and defendant's railroad ran across it from west to east. The depot was located just east of this avenue, and some of the principal business houses of the city, including hotels and the post office, were situated near this vacant block. The testimony tended to prove that the public for a long time prior to the injury had been using the space between the double tracks along this vacant block for the purpose of walking to and from these various business places. A beaten path lay across the block to the railroad track, and the public continuously used this and the space between the tracks as a footpath in going to and from the depot, hotels, and post office. On May 26, 1909, plaintiff left his tent on the vacant block to go to the mill where he was working, which was located east of the depot. He proceeded along the pathway to the railroad track, and then for a distance of 75 or 80 feet between the tracks to New Orleans avenue. This street is about 80 feet wide, and runs north and south across the railroad tracks. The plaintiff proceeded in this street for probably 50 or 75 feet, and then turned south and crossed the defendant's track in order to get to a platform on the south side thereof. He had just gotten over the track, and was on the ties on the outer side thereof, and in the act of stepping to the platform, when the pilot of a passenger train coming from the west struck him in the back, knocking him down, and dragging him along for a short distance. His left arm was crushed to such an extent that amputation was necessary, and he was severely injured in the back and head. The injury occurred about sunset, and there was a sharp conflict in the testimony as to the exact hour, and also as to the degree of darkness or of light at that time. Some of the witnesses on behalf of the defendant testified that it was light, and a train on the track could have been readily seen for the distance of a mile or more. One of the witnesses on behalf of plaintiff testified that it was "pretty dark." Another said that it was "nearer dark than daylight." Another stated that it was "dusk dark." The plaintiff said it was "real dark, or getting real dark." The testimony on the part of the plaintiff tended further to prove that there was no headlight upon the engine of this train, that no bell was rung or whistle sounded as it approached this crossing, and that the train was going at a rate of speed of from 12 to 15 miles per hour and in excess of the speed allowed by an ordinance of the city. The plaintiff testified that, when he first reached the railroad track after leaving his tent, he stopped, and thereupon looked up and down the track, and listened for a train, and, neither seeing nor hearing a train running on the track, he proceeded between the tracks until he got to New Orleans avenue, where he again looked and listened for any approaching train. He then proceeded into the street until he got near the east side thereof, when he turned in a southerly direction to the railroad track in order to cross it, and that, before going upon the track, he again looked up and down the track, and, neither seeing nor hearing an approaching train, he proceeded to cross the track. At this time there was an engine, from which the steam was escaping, standing on a side track nearby, and the consequent noise therefrom was probably sufficient to prevent the hearing of any approaching train. Just as the plaintiff had crossed the track, and was on the outside ties, some one cried out, and, as he turned, the train struck him.

We do not think it necessary to pass upon the question as to whether or not the public was using the railroad right of way along the vacant block as a highway by implied invitation or permission of defendant, or whether the use thereof by the public and the plaintiff as a footpath was so general, long continued, and oft repeated that the defendant must have known it and acquiesced in it, and thus have constituted the plaintiff, while in the use thereof, a licensee, and not a trespasser. Mo. & N. Ark. Ry. Co. v. Bratton, 85 Ark. 326, 108 S. W. 518; Moody v. St. L., I. M. & S. R. Co., 89 Ark. 103, 115 S. W. 400, 131 Am. St. Rep. 75. The injury did not occur upon the railroad right of way in this vacant block, but it occurred at the public crossing in a public street. The fact that prior to that time the plaintiff had been walking on the roadbed between the tracks along the vacant block, whether he was then a trespasser or not, could not affect his rights at the time when he was actually on the public crossing. When he was in the street, at this public crossing, he then became a traveler in a public highway at the crossing of defendant's track, and he had then the right to use such crossing equally with the defendant. At that place and time he was not a trespasser upon defendant's right of way.

At such place it was the duty of defendant to exercise ordinary care in the operation of its train to prevent any injury to him as a traveler. St. L. & S. F. R. Co. v. Carr, 94 Ark. 246, 126 S. W. 850. The principles of law that are applicable to a case like the...