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

• Citation: 127 S.W. 715,94 Ark. 524
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. SMITH
• Decision Date: 18 April 1910
• Court: Supreme Court of Arkansas

127 S.W. 715

94 Ark. 524

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. SMITH

Supreme Court of Arkansas

April 18, 1910

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

Judgment reversed and cause remanded.

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

The court should have instructed the jury find for appellant. 54 Ark. 431; 56 Ark. 457; 61 Ark. 549; 62 Ark. 157; 65 Ark. 235; 78 Ark. 55; 88 Ark. 172; Id. 231; 37 Ark. 593; 71 Ark. 38. It is the duty of one approaching a railroad track to look both ways for trains. 69 Ark. 134.

Henry Berger and Mehaffy & Williams, for appellee.

The evidence was sufficient to warrant a recovery. 74 Ark. 409; Id. 478. Appellant did not use proper care to avoid the injury after discovering the deceased. 80 Ark. 186. A general objection to several instructions in gross is not sufficient if any one of them is good. 76 Ark. 41; 75 Ark 181; 73 Ark. 315; 78 Ark. 100; 79 Ark. 339; 65 Ark. 255; 80 Ark. 535; 81 Ark. 191; 82 Ark. 388; 85 Ark. 130; 86 Ark. 104. Licensees are not trespassers. 85 Ark. 333; 86 Ark. 185; 89 Ark. 103; 74 Ark. 610; 64 Ill.App. 623; 74 F. 285; 38 A. 236; 27 S.E. 20; 39 L.R.A. 399; 72 N.W. 783; 118 S.W. 201.

OPINION

FRAUENTHAL, J.

On April 30, 1909, about 6 o'clock P. M., Isaac Smith was run over and killed by a train of the Chicago, Rock Island & Pacific Railway Company upon its main track at its depot in the city of Malvern. The appellee instituted this action to recover damages for his alleged negligent death, and recovered a judgment for five hundred dollars. The defendant prosecutes this appeal from that judgment.

Upon the opposite side of the railroad track from the depot a public street runs next to and parallel with the track. Isaac Smith crossed over this street to the main track of the railroad, and stepped upon the ties next the rails at a point nearly opposite the depot. He then walked upon the ties next to and outside of the rails for a distance of from 120 to 150 feet, and then attempted to cross over the track when a train of defendant, coming from back of him, ran over and killed him. The evidence on the part of the plaintiff tended to prove that the public had for some time been accustomed to use the railroad track at this place as a foot walk, and at the place where Smith attempted to cross the track the public had for some time been using the same as a public crossing. Just before Smith crossed to the railroad track, the defendant had been and was engaged in switching its cars along this track; and about the time he stepped upon the ties its engine was backing towards the depot with four cars attached at its front. About that time the engine with the cars attached was emerging from a curve in the track which, one of the witnesses said, was about from 400 to 500 yards from the depot, but which the other witnesses say was from 400 to 500 feet therefrom. There is no testimony indicating whether or not Smith looked or listened when he crossed the street and stepped upon the ties, but the uncontradicted testimony is that he walked along the track upon the ties with his head down, and that he did not turn or look around; and that he did not turn or look in the direction from which the train was coming when he attempted to cross the track. The evidence shows that the track was straight back to said curve, and no obstruction was between it and the depot; that it was broad daylight, and that the train could have been seen if Smith had looked in the direction from which it was coming. The deceased was somewhat deaf and about 65 years old. The evidence on the part of the plaintiff tended further to show that when the train emerged from the curve the fireman was sitting in the cab of the engine, and was looking down the track in the direction of Smith, and continued to look in that direction from that time until the train ran over him; that no bell was rung or whistle blown, and that the train did not slacken its speed from the time it left the curve until just as it struck Smith; and that during all that time Smith was walking with his back to the train and seemingly unaware of its approach.

At the request of the plaintiff the court instructed the jury, in effect, that if the deceased was walking along a portion of the railroad track which had been and was commonly and habitually used by the public as a highway for travellers on foot with the knowledge and acquiescence of the defendant, and did not discover the approach of the train, and that the defendant, by failing to keep a lookout, or by failing to ring the bell or blow the whistle, or by failure to use ordinary care after discovering deceased to avoid injuring him, did negligently run over and kill the deceased, then the plaintiff was entitled to recover.

It is urged by counsel for defendant that the uncontroverted testimony shows that the deceased was guilty of contributory negligence, and that therefore the instruction to the above effect was erroneous; and we think that ordinarily under the evidence adduced in this case this contention is correct.

It has been uniformly held by this court that, with a few exceptions which cannot apply to the uncontroverted testimony in this case, it is the duty of a person going on or near a railroad track to use ordinary care and precaution to protect himself from danger; and to use that ordinary care and precaution the law demands that he must look and listen. This rule applies whether such person is rightly there by the express or implied invitation of the railroad company, or otherwise. It applies when the traveller approaches a railroad track at a public crossing, and when as a licensee he walks along or upon the railroad track. In the case of Tiffin v. St. Louis, I. M. & S. Ry. Co., 78 Ark. 55, 93 S.W. 564, this court says: "It has been repeatedly held by this court that it is negligence for one approaching a railroad crossing to fail to look and listen for the approach of trains, and that only in exceptional cases is it proper to submit to the jury the question whether or not the failure to exercise such caution is negligence." And in that case the exceptional instances are set out and discussed. The case at bar is not one of those exceptional instances, because, if the deceased had looked either as he walked along the ties or as he attempted to cross the track, he could have seen the approaching train, and the circumstances were not so unusual that he could not have reasonably expected the approach of a train at that time; and he was not misled or induced by any act of defendant's agents or employees to cross the track. Nor will the failure on the part of the employees of the railroad company to keep a lookout, as required by the act of April 8, 1891, absolve the injured person from the effect of his contributory negligence.

As was said in the case of St. Louis S.W. Ry. Co. v. Cochran, 77 Ark. 398, 91 S.W. 747: "The true rule, which no amount of amplification can simplify, is that whenever the negligence of the plaintiff contributes proximately to cause the injury of which he complains, the defendant is not liable, unless the defendant discovered the peril in time to avoid the injury by the use of ordinary care." Johnson v. Stewart, 62 Ark. 164, 34 S.W. 889; St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235, 35 S.W. 216; St. Louis, I. M. & S. Ry. Co. v. Dingman, 62 Ark. 245, 35 S.W. 219; St. Louis, I. M. & S. Ry. Co. v. Jordan, 65 Ark. 429, 47 S.W. 115.

So much of the instruction, therefore, which at the request of the plaintiff submitted to the jury the question as to whether or not the deceased was guilty of contributory negligence in failing to look and listen, or to discover the approach of the train, when he was walking along the ties next to the track, or when he attempted to cross the track was erroneous under the uncontroverted testimony adduced in this case. We think, however, that the defendant waived that particular error by requesting an instruction containing the same error. By such action it...