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

• Decision Date: 11 February 1918
• Docket Number: 157
• Citation: 200 S.W. 1000,132 Ark. 431
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ELZEN
• Court: Arkansas Supreme Court

200 S.W. 1000

132 Ark. 431

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ELZEN

No. 157

Supreme Court of Arkansas

February 11, 1918

Appeal from Saline Circuit Court; Scott Wood, Judge; affirmed.

Judgment affirmed.

T. S Buzbee and H. T. Harrison, for appellant.

1. Plaintiff was guilty of negligence, which precludes his recovery. 110 Ark. 106; 102 Id. 160; 101 Id. 321; 62 Id. 156; 61 Id. 559; 84 Id. 270; 76 Id. 10; 54 Id. 435; 125 Id. 509. See also 107 Id. 220.

This rule is not abrogated by the "lookout" statute of 1911. 125 Ark. 509; Tyler v. Ry. Co., ms., Oct. 29 1917; 84 Ark. 270.

H. S Powell, for appellee.

1. Negligence of the train crew was a question for the jury. Negligence was proven. 64 Ark. 239. Appellee was not a trespasser; he was a traveler on a public street and had a right to be there, and it was the duty of the company to protect him, using due care. They saw him, and should have avoided the injury. 69 Ark. 130; 108 Id. 335; 96 Id. 73; 94 Id. 246; 125 Id. 428.

2. There was no error in the court's instructions. 69 Ark. 130; 124 Id. 518; 119 Id. 36. No contributory negligence is shown. 84 Ark. 270 is not in point, as appellee did not know the train was coming over track 4. The evidence supports the verdict.

OPINION

HUMPHREYS, J.

Appellee brought suit against appellants in the Saline Circuit Court to recover damages for an injury received by him at Washington avenue crossing, on the 21st day of December, 1915, in El Dorado, Arkansas, from appellant's moving train, through the alleged negligence of their servants.

Appellants severally denied negligence on their part, and, by way of further defense, pleaded contributory negligence on the part of appellee.

The cause was submitted to the jury on the pleadings, evidence and instructions of the court. A verdict was returned in favor of appellee for $ 1,500 and a judgment rendered in accordance therewith, from which an appeal has been properly prosecuted to this court.

The cause was sent to the jury upon the issues, first, of discovered peril, and, second, whether appellee had knowledge of the approaching train.

It is insisted by appellants that the court erred in submitting these questions to the jury. It is said that the court should have exempted appellants from liability under the undisputed evidence in the case. This is true if the undisputed evidence disclosed that the enginemen exercised reasonable care to prevent the injury after discovering the perilous situation of appellee; or if the undisputed evidence revealed the fact that the appellee was aware of the danger and walked into it either thoughtlessly, carelessly or with a view to being able to extricate himself from it.

The facts in the record responsive to the issues thus stated are, in substance, as follows: Appellee was walking south in the night time in El Dorado, Arkansas, on Washington avenue, which was crossed by four railroad tracks, referred to by the parties for convenience as tracks 1, 2, 3 and 4. The injury occurred on the south track, designated as track 4, at a point where the track intersects the west side of said avenue. As appellee walked he was facing a street light not far distant on the east side of the avenue. Track 3 approached the avenue in a northeasterly direction and crossed it diagonally in a straight course. Track 4 parted from track 3, 326 feet southwest of the avenue and crossed the street on a curve in the same general direction. Tracks 3 and 4 were about 100 feet apart where they crossed the avenue. Appellee testified that when crossing track 3 he observed a light from the headlight of an engine in the railroad yards to the southwest shining on track 3; that when between tracks 3 and 4, he looked again in the direction of the yards and saw a light from a headlight still shining on track 3, which was then in his rear; that he heard no train coming, nor whistle blowing nor bell ringing; that he then stepped on track 4, at which time the light suddenly flashed over him, and he jumped but was struck by an engine and knocked off the track on the engineer's side and injured.

The engineer and fireman testified that they discovered appellee approaching track 4 just before they reached the connecting switch of tracks 3 and 4 where they turned onto track 4, and that the engineer blew four short blasts of the whistle to attract appellee's attention. The engineer testified that after he turned on track 4 the curve caused the engine to obstruct his view and prevent him from seeing appellee. The firemen testified that he observed appellee continuously from the time he crossed track 3...