Chicago, Rock Island & Pacific Railway Co. v. Abel

• Decision Date: 10 November 1930
• Docket Number: 224
• Citation: 32 S.W.2d 1059,182 Ark. 651
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ABEL
• Court: Arkansas Supreme Court

32 S.W.2d 1059

182 Ark. 651

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ABEL

No. 224

Supreme Court of Arkansas

November 10, 1930

Appeal from Yell Circuit Court, Danville District; J. T. Bullock Judge; reversed.

STATEMENT OF FACTS.

This appeal is prosecuted to reverse a judgment for damages in the trial court entered on the verdict of a jury against the appellant for the negligent injury of appellee, one of its employees.

At the time of the injury appellee was a member of a "tamping gang" engaged in the maintenance of the roadbed of the through line running out of Oklahoma through Arkansas and into Tennessee. He was working as the engine operator of the machine and when the gang quit for dinner, the machine was left on the side of the track in a cut about 5 feet deep where there was an unobstructed view down the line from 1,200 to 1,500 feet. There was ample room between the track and the side of the cut for appellee to stand in the clear of passing trains. After the men had finished dinner, he told the foreman he would go back and see if he could not go over the machine and fix it so it would do better work, and the foreman said to go ahead and do it.

Appellee stated that it was his duty to see that the gas engines used in operating the tamping guns were kept in running order, the principal part of his work being to stop gas leaks and valves missing and light repairs of that kind. That the machines were located about a quarter of a mile east of Birta and because of an embankment of the roadbed they could not get the machines over three feet away from the track--just a good arm's reach from the track was the distance we could put the machines, and not any further on account of the roadbed being narrow at the place. The appellee had adjusted the machine, and it was running and making a good deal of noise at the time of the injury. He started the machine, was running it, testing it, and standing with his back to the west, the direction from which the train came, was cleaning up the machine with the air pump which also made a considerable racket; heard no signals given by the approaching train. He knew that freight and passenger trains passed over the track at all times, and said: "Our instructions were to look out for the trains and keep out of the way of them--was told that the rules of the company required us to look out for the trains, and I had done that until this last time."

There was room at the point of the injury for appellee to stand out of the way, in the clear, of approaching trains. He did not remember his exact position when the train struck him, but knew he was too close to the track if he stood between the track and the machine he was fixing for a passing train to clear him. The last time he did look down the track he didn't see any train approaching.

Other testimony was in conflict as to whether the usual signals were given by the approaching train, some of the witnesses testifying positively that the whistle was blown within two or three hundred yards of where appellee was working and where he could have easily seen it, had he looked that way.

Appellant asked for a directed verdict; objected to the modification of some its requested instructions and the giving of them as modified, and especially to the giving of instruction No. 6 telling the jury that it was the duty of the agents and servants of appellant to keep a constant lookout for appellee, and if they could by keeping such lookout have seen him and discovered his perilous position in time to have avoided striking him by the exercise of ordinary care, and failed to exercise such care to...