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

• Decision Date: 26 October 1931
• Docket Number: No. 166.,166.
• Citation: 42 S.W.2d 762
• Parties: CHICAGO, R. I. & P. RY. CO. v. THOMAS et al.
• Court: Arkansas Supreme Court

42 S.W.2d 762

CHICAGO, R. I. & P. RY. CO. v. THOMAS et al.

No. 166.

Supreme Court of Arkansas.

October 26, 1931.

Appeal from Circuit Court, Hot Springs County; T. E. Toler, Judge.

Action by W. P. Thomas and others against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

W. P. Thomas, Felix Bailey, Mollie Bumgarner, and R. H. Bumgarner brought this action in the circuit court against the Chicago, Rock Island & Pacific Railway Company for damages to the automobile of W. P. Thomas and for personal injuries to themselves, alleged to have been caused by the negligence of the defendant in operating one of its motor passenger cars.

W. P. Thomas was a witness for the plaintiffs. According to his testimony, he operated a grocery and furniture store on a public road about 150 steps from a public road crossing of the Chicago, Rock Island & Pacific Railroad. About 1:30 o'clock p. m. on November 21, 1930, Felix Bailey and Mr. and Mrs. R. H. Bumgarner and himself left the home of the latter situated opposite his store and started in a Chevrolet automobile driven by himself to Malvern, Ark. The windows in the Chevrolet coach were about halfway up. There were some sweet-gum bushes along the right of way of the railroad company. The bushes were good high bushes and had leaves on them. The public road was practically level, but was little upgrade. He said that his hearing and eyesight were both good, and that he did not hear the railroad engineer give any signals either by ringing the bell or sounding the whistle for the public crossing towards which they were traveling. Witness stated that he would have heard the bell ringing or the whistle blowing if such had been the case. He was listening for these signals and also looking as well as he could for approaching trains on the railroad track. He did not see the railroad coach until about the time it struck them. Just as plaintiffs got within fifteen feet of the crossing, witness discovered the railroad car; and just at that time the bell rang and the whistle blew too. He tried to apply his brakes, turned his car down the track and tried to avoid the collision, but was unable to do so. He stated that he was familiar with this railroad crossing and sometimes crossed it fifteen or twenty times a day. The railroad passenger coach running from Camden to Malvern, Ark., was the one that struck them. Thomas stated that they were traveling at about the rate of fifteen miles per hour.

Felix Bailey, Mrs. Mollie Bumgarner, and Roy Bumgarner were all witnesses for the plaintiffs, and their testimony was substantially the same as that of W. P. Thomas.

All of them were injured, but it is not necessary to abstract the testimony on this point because no complaint is made that the verdict was excessive.

Other witnesses for the plaintiff testified that the operatives of the railroad motor passenger car did not sound the whistle or ring the bell as the car approached the public crossing where the accident occurred. The witnesses testified that their hearing and sight were both good and that they were close enough to have heard the bell ring or the whistle blow if such had been the case. They testified that they could and would have heard the bell ring and the whistle sound if these signals had been given.

C. H. Hooper, the engineer on the motor passenger car, was a witness for the defendant. According to his testimony, he had operated this motor coach in carrying passengers from Camden to Malvern, Ark., over the line of the defendant's railroad for the past two years. He remembered the collision in question. The motorcar was stopped at the Missouri Pacific Railroad crossing to open an interlocking gate; and then after the passenger coach had crossed the Missouri Pacific Railroad, it was stopped again to close the gate. After this the passenger coach was started up going east towards Malvern. When the engineer got within 200 feet of the public crossing where the accident occurred, he saw the automobile going towards the crossing. When the engineer saw the automobile, his passenger coach was making about ten or twelve miles per hour, and he did not think the automobile was running any faster than that. The engineer thought the automobile was going to stop because it slowed up, but he rang the bell and sounded the whistle for the crossing as required by statute, and the bell was still ringing when the accident occurred. After he first saw the automobile 200 feet away, he did not remember seeing it again until just before the collision. He was on the right-hand side of the coach on the opposite side from that on which the automobile was struck. He said that he had other things to watch besides automobiles. He cannot explicitly say how far the car in question was away from the passenger coach when he put on the brakes. He saw that the approaching automobile was getting too close for safety, and he applied all the brakes in emergency to avoid striking it. He stopped the passenger car in about 25 or 30 feet.

The conductor on the passenger motor coach of the defendant, and the freight mail and express messenger on it, both testified that the engineer rang the bell and sounded the whistle for the highway crossing where the accident occurred. The bell was ringing continuously from the time the passenger coach started up after crossing the Missouri Pacific Railroad until it was stopped at the time of the accident. The motor passenger coach approached the crossing at a speed of between ten and twelve miles per hour. The passenger motorcar stopped within 15 or 20 feet after the engineer...