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

• Decision Date: 15 December 1913
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. BRYANT
• Court: Arkansas Supreme Court

162 S.W. 51

110 Ark. 444

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. BRYANT

Supreme Court of Arkansas

December 15, 1913

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

Affirmed.

Thos S. Buzbee and John T. Hicks, for appellant.

J. C Ross, for appellee.

OPINION

MCCULLOCH, C. J.

The plaintiff, William Bryant, while crossing a railway bridge which constituted a part of the roadway of the defendant, Chicago, Rock Island & Pacific Railway Company, was struck and injured by a motor car operated by defendant for the purpose of carrying passengers between Malvern and Hot Springs, Arkansas, and he instituted this action to recover damages.

Plaintiff was walking along the railroad track, when he came to the bridge across a creek and undertook to cross it by crawling over the crossties on his hands and knees. He was struck by the car just as he got across the bridge and before he had time to get off the track. It was at night, and he claims that he neither saw nor heard the car until about the time it struck him.

He alleges that the railway company and its servants were negligent in failing to equip the car with a headlight, as required by statute, and that the motorman failed to exercise proper care to discover his presence on the track and prevent injuring him.

The defendant in its answer denied the charges of negligence, and alleged that, after discovering the plaintiff's presence on the track, the motorman did all he could to avoid inflicting the injury.

The case was tried before a jury and the trial resulted in a verdict in favor of the plaintiff for damages in the sum of $ 250.

The plaintiff testified in his own behalf and also introduced a number of witnesses, the testimony so adduced tending to show that the headlight on the car was not of the power and brilliancy required by the statutes of this State, and that, if the car had been properly equipped and the motorman keeping a lookout, the plaintiff's presence on the track could have been discovered in time to stop the car or check its speed and avoid injuring plaintiff.

The testimony adduced by the defendant tended to show that the headlight was in accordance with the requirements of the statute, and that the motorman was keeping a lookout, but that on account of a curve in the track the presence of plaintiff crossing the bridge could not be discovered in time to avoid striking him, and that after his presence was discovered, the motorman exhausted every effort to prevent striking him.

The evidence was sufficient to sustain the contention of the plaintiff and support the finding of the jury.

The injury occurred on the night of November 30, 1912, and the case is, therefore, governed by the new "lookout" statute approved May 26, 1911, and which reads as follows:

"It shall be the duty of all persons running trains in this State upon any railroad, to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad, shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout. Notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company, could have discovered the peril of the person injured in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact, that this duty to keep such lookout has been performed." Acts 1911, page 275.

The plaintiff was a trespasser upon the tracks of defendant, but notwithstanding that fact, the defendant, according to the terms of the statute, was liable for the injury if it was caused by the failure of the motorman to keep a lookout.

We decided in the recent case of Central Railway Company of Arkansas v. Lindley, 105 Ark. 294, 151 S.W. 246, that this statute applies to a motor car operated on a railroad for transportation of passengers.

The General Assembly of 1907 enacted a statute which provides that "any company, corporation or officer of court owning or operating a railroad over fifty...