Chicago, Rock Island & Pacific Railway Company v. Batsel

• Decision Date: 23 October 1911
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. BATSEL
• Court: Arkansas Supreme Court

140 S.W. 726

100 Ark. 526

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. BATSEL

Supreme Court of Arkansas

October 23, 1911

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; affirmed on remittitur.

Judgment reversed and cause remanded.

Thos S. Busbee and George B. Pugh, for appellant.

1. Appellee was on foot and without impediment, in age he was in the prime of life, and in full possession of all his faculties. It was after sunset, but light enough to distinguish a man two or three blocks away and to recognize one a block away. The track was straight for miles in the direction from which the train came, almost perfectly level for a thousand feet, and there was no obstruction of any kind intervening to obstruct the view. Under these circumstances to accept appellee's statement that he stopped and looked and listened when he first came upon the track, and again when he reached New Orleans Avenue, and again when he reached the middle of the street and started to step upon the track to cross over to the south side and continued to look and listen while he walked diagonally across the track, and failed to see or hear the approaching train, is to believe the impossible. It is in direct contradiction of all the physical facts, besides being contradicted by the fact that all other witnesses who testified did see the train approaching. 79 Ark. 608, 624; 61 Ark. 549; 97 Ark. 438.

2. Appellee was a trespasser. Mere acquiescence or failure of a railroad company to object can never give people the right to walk up and down the railroad tracks and convert them into a highway for pedestrians, unless there is an invitation from the company that they may be so used. 90 Ark. 278; 83 Ark 300. The fact that at the time he was injured he had reached a public crossing does not change his relationship to the company. Since he was using the place provided for a crossing by walking laterally with the tracks, he was still a trespasser. 49 Ark. 257; 46 Ark. 513; 82 Ark. 276; 83 Ark. 300; 93 Ark. 24.

3. The court admitted incompetent evidence in permitting appellee to testify to the fact of his being married and to the number of his children. This testimony was prejudical in that its only effect was to arouse the sympathy and enhance the amount of damages. 74 Ark. 326.

4. The verdict is so excessive as to merit a reversal, or at least an order of remittitur down to a reasonable sum. 89 Ark. 522.

Manning & Emerson, for appellee.

1. On the question of the legal sufficiency of the evidence to support the verdict, it is first to be remembered that under that portion of the evidence which is undisputed negligence on the part of appellant and a prima facie case in favor of appellee are established, placing the burden of proof on appellant. Kirby's Dig., § 6773; 73 Ark. 548-553 and cases cited; Kirby's Dig., §§ 6607, 6595; acts 1907, p. 1019 § 1.

The strongest probative force will be given to the evidence in support of the verdict. It will be considered in the light most favorable to appellee, and all disputed questions of fact will be considered as settled in his favor by the verdict. 129 N.W. 468-9; 97 Ark. 438; 135 S.W. 338, 339. The question also as to whether or not appellee both looked and listened before going upon the track and neither saw nor heard the train, is settled in his favor by the verdict.

On account of the long continued and almost constant use of the track just west of the street crossing and on the crossing itself, by the public, of which use appellant was fully aware, appellant was under the duty to exercise every precaution to pevent injuring persons upon its track, and especially persons upon the street crossing where appellee was when injured. 89 Ark. 103-107; 87 N.E. 40-42; 133 S.W. 789; 73 Ark. 413; 88 Ark. 524, 531.

The jury might well give credence to appellee's testimony that he had looked and listened and failed to see or hear the train from the facts in proof that it was "pretty dark," "real dark" and "probably partly cloudy;" that there were lights in the coaches; that the headlight on the engine had been lighted and permitted to go out, and that lights were burning in the hotel; also, that about a quarter of a mile from the place of injury there was a low place in the track where a train could not be seen after dark unless the headlight was burning. 137 S.W. 568-573; 92 N.E. 241; 87 Ark. 628, 631, 85 Ark. 326-333; 79 Ark. 138-141; 126 S.W. 850-853; 68 N.W. 599; 98 Ark. 422. See also 74 Ark. 372;

If the physical facts were as contended for by appellant, then its servants in charge of the train could have seen appellee in time to have prevented injuring him, and the jury might have so found If so, their finding could not be disturbed on appeal. 91 Ark. 14-19; 89 Ark. 496; 104 S.W. 533.

2. Appellee was not a trespasser. Where the use of a railroad track by the public as a highway has been so general, long continued and oft repeated that the company must have known of it and acquiesced therein, such use by the party injured would be permissive and constitute him a licensee instead of a trespasser. 89 Ark. 103-107; 85 Ark. 326. In this case, appellant being no trespasser at any time on appellant's property, it owed him the same duty when he first crossed the track as it did when he crossed at the street crossing. 128 S.W. 841. What his relationship was towards appellant when he first crossed the track, and when he was walking between the two tracks is not material. He was injured while on the public street crossing, and he could not have been a trespasser there. 33 Cyc. 756; Id. 757; Id. 932; 88 Minn. 325, 92 N.W. 1115; 105 La. 418; 29 So. 952; 126 S.W. 850, 852.

3. There was no erroneous or prejudicial testimony admitted; but if the testimony as to being married and having a number of children was immaterial and therefore inadmissible, it was harmless and not prejudical, for the reason that the evidence shows that appellee sustained greater actual damages than the jury allowed him, not to mention his pain and suffering. 74 Ark. 326; 31 W.Va. 842, 8 S.E. 512; 67 Mich. 61, 34 N.W. 659.

4. The verdict was not excessive. 89 Ark. 522; St. L., I. M. & S. Ry. Co. v. Webster. 99 Ark. 265; St. L., I. M. & S. Ry. Co. v. Brown, 100 Ark. 107; 93 Ark. 183; 87 Ark. 443; 117 N.Y.S. 233; 117 S.W. 1043; 52 Wash. 289; 100 P. 838; 115 S.W. 302; 120 S.W. 958; 111 S.W.761; 125 S.W. 720; 129 N.W. 124; 111 P. 632; 112 P. 235; 185 F. 624; 126 S.W. 657; 104 P. 126; Id. 225.

FRAUENTHAL, J. WOOD and HART, JJ., concurring.

OPINION

FRAUENTHAL, J.

This was an action instituted by the plaintiff below to recover damages for personal injuries which he sustained by being struck and run over by one of defendant's trains at a public crossing in the city of Brinkley. The jury returned a verdict in his favor and assessed his damages at $ 17,000. From the judgment entered upon that verdict, the defendant has prosecuted this appeal. In its motion for a new trial it sets forth a number of grounds why the judgment should be reversed, but on this appeal it only presses the following: (1) because there is not sufficient evidence to warrant a recovery in favor of the plaintiff; (2) because the court erred in certain rulings made by it relative to the instructions; (3) because the court erred in permitting the introduction of certain incompetent testimony; (4) because the verdict is excessive.

The plaintiff was struck by one of defendant's trains while he was crossing the railroad track in a public street in the city of Brinkley known as New Orleans Avenue. The defendant contends that the evidence is not sufficient to justify a recovery in favor of plaintiff because (1) he was a trespasser upon its property, and there is no proof that the defendant or its employees could have avoided the injury after discovery of his perilous situation on or near the track, and (2) because the plaintiff was guilty of negligence contributing to the cause of the injury.

The plaintiff was a carpenter and millwright, and had gone to Brinkley a few months prior to the time he sustained this injury, and was engaged in rebuilding a mill that had been destroyed by a cyclone which visited that city about that time. With his family he was living in a tent upon a vacant block in the center of the business section of the city. This block adjoined New Orleans Avenue on its west, and defendant's railroad ran across it from west to east. The depot was located just east of this avenue, and some of the principal business houses of the city, including hotels and the postoffice, were situated near this vacant block. The testimony tended to prove that the public for a long time prior to the injury had been using the space between the double tracks along this vacant block for the purpose of walking to and from these various business places. A beaten path lay across the block to the railroad track, and the public continuously used this and the space between the tracks as a foot path in going to and from the depot, hotels and postoffice. On May 26, 1909, plaintiff left his tent on the vacant block to go to the mill where he was working which was located east of the depot. He proceeded along the pathway to the railroad track, and then for a distance of 75 or 80 feet between the tracks to New Orleans Avenue. This street is about 80 feet wide, and runs north and south across the railroad tracks. The plaintiff proceeded in this street for probably 50 or 75 feet, and then turned south, and crossed the defendant's track in order to get to a platform on the south side thereof. He had just got over the track, and was on the ties on the outer side thereof and in the act of stepping to the platform when the pilot of a passenger train coming from the west struck him in the back,...