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

• Citation: 184 S.W. 65,123 Ark. 94
• Decision Date: 20 March 1916
• Docket Number: 273
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO. v. SCOTT
• Court: Arkansas Supreme Court

184 S.W. 65

123 Ark. 94

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO. v. SCOTT

No. 273

Supreme Court of Arkansas

March 20, 1916

Appeal from Crittenden Circuit Court, First Division; J. F. Gautney Judge; affirmed.

Judgment affirmed.

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

1. The proof was not sufficient to show negligence on part of defendant.

2. Defendant's negligence was not the proximate cause. 66 Ark. 68; 87 Id. 576; 51 L. R. A. (N. S.) 892; 95 U.S. 439; 40 Ark. 322; 45 S.E. 886; 62 Ark. 170; 76 Id. 13.

3. It was error to give instruction No. 3. It entirely ignores the question of deceased's negligence. Also in giving No. 5. It is abstract. 111 Ark. 135.

It was error to refuse to give defendant's request No "D." 98 Ark. 17; 96 Id. 206. Also in refusing "A" and No. 2. 36 Ark. 377; 46 Id. 522; 7 L. R. A. (N. S.) 132; 63 Ark. 489.

Covington & Grant, for appellee.

1. The evidence is sufficient and defendants' negligence was the proximate cause. Plaintiff made out her case. 107 Ark. 431; 119 Ark. 36; 110 Ark. 169; 108 Id. 331; 107 Id. 170; 94 U.S. 474; 13 Cyc. 25, 6, 7. Failure to keep a proper lookout and exercise ordinary care was the proximate cause. 108 Ark. 331.

2. There was no negligence of deceased. The lookout statute makes the failure to keep the lookout or to exercise the ordinary care required the proximate cause. 108 Ark. 331; 109 Id. 241; 40 F. 632.

3. There is no error in the court's charge. 112 Ark. 405; 111 Id. 133; 93 Ark. 19; 111 Id. 133; 88 Id. 209; 111 Id. 281. The statute and 108 Ark. 331 settles this case.

OPINION

SMITH, J.

Appellee recovered judgment as administratrix of the estate of her husband to compensate the loss occasioned by his death, while engaged in the pursuit of his duties as a brakeman. The suit was brought against both the appellant railway company and the Frisco Railroad Company. It was alleged in the complaint that both of said railroads were operating trains through the town of Mansfield, Arkansas, where there were numerous sidetracks and switches used by them for switching cars and for other railroad purposes. That appellee's intestate, Ira M. Scott, was, on the 5th of May, 1914, employed by the Frisco Railroad Company, at which time the employees in charge of the train on which he was engaged as a brakeman and the trainmen operating one of the trains of the appellant company carelessly and negligently ran said trains together, and as a result of this collision the deceased received the injuries from which he died after suffering great pain.

Appellant filed a separate answer in which it denied specifically all the material allegations of the complaint, and plead affirmatively that the death of appellee's intestate was due to his own negligence.

At the conclusion of appellee's testimony the court, upon motion of the Frisco Railroad Company, ordered appellee to elect which of the defendants she would proceed against, whereupon she dismissed her suit against the Frisco and elected to proceed against the appellant company.

The evidence in support of the allegations of the complaint tended to establish the following facts: Appellant's railroad runs in a southwesterly direction through the town of Mansfield, while the Frisco tracks run almost due east and west, curving to the north in going from Mansfield to Jensen. The tracks of the two roads come together about twelve or fourteen hundred feet east of the Rock Island depot. Frisco trains from Jensen to Mansfield, after reaching Mansfield, leaves the main line Frisco track at a point near where the two roads come together, and back up to the depot, traveling over what is called the run-around track. On the day in question the Frisco train had gone into the depot in the usual way, and the switch leading from the Frisco track to the run-around track had been left open with the red target or danger signal exposed, which fact gave notice that the track leading from the switch to the depot was being used at the time by a Frisco train. The Frisco train was composed of an engine, with a caboose attached to the rear, and a large refrigerator car coupled to the front, and after unloading some freight at the depot it started on its return to its own main track, where the car which was being pushed in front of the engine was to be placed upon the track for which it was intended by a flying switch. As this train was returning to its own track it encountered the Rock Island engine, which had "run over" the red target and come in upon the same track the Frisco train was on, and the trains collided with such force that Scott, who was riding on the pilot of the engine on the engineer's side, was killed, as was also another brakeman who was riding on the pilot on the opposite side of the engine. It was Scott's duty to have been on top of the car which was being pushed in front of the engine, or to have been on the ladder on the side of the car in a position to signal the engineer. As it was, there was no one on the Frisco train who could keep a lookout, and this train went blindly towards the switch where it would leave appellant's tracks for its own. The only possible excuse that could be offered for this negligence was the fact that the red target at the switch would apprise the trainmen in charge of appellant's engine of the presence of the Frisco train.

It was shown, however, on the part of appellant that it was not negligent in having come in upon the run-around track on which the collision occurred and that its train had a right to go upon this track notwithstanding the presence of the other train, provided the engine was kept under control, and the same duty rested upon the operatives of both trains to keep the engines under control. It was shown that by operating under control was meant having that control of the engine which would enable the engineer to bring his engine or train to a stop within the range of his vision, that is, within the distance he could discern the presence of danger upon the track ahead of him, or in case his vision, for any cause, was obstructed, to have his engine under such control that he could stop it within the range of vision of the man whose duty it was to pass signals to him.

There are not many controverted questions of fact in the case, but among such questions are the relative speed of the trains and the distance...