Chicago, Rock Island & Pacific Railroad Co. v. Tankersley

• Decision Date: 17 January 1938
• Docket Number: 4-4874
• Citation: 113 S.W.2d 114,195 Ark. 365
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY v. TANKERSLEY
• Court: Arkansas Supreme Court

113 S.W.2d 114

195 Ark. 365

CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY v. TANKERSLEY

4-4874

Supreme Court of Arkansas

January 17, 1938

Appeal from St. Francis Circuit; Roy D. Campbell, Special Judge reversed and dismissed.

Judgment reversed and cause dismissed.

Thos S. Buzbee, H. T. Harrison, A. S. Buzbee and Edward L. Wright, for appellants.

Winstead Johnson and S. S. Hargraves, for appellee.

GRIFFIN SMITH, C. J. HUMPHREYS and MEHAFFY, JJ., dissent.

OPINION

GRIFFIN SMITH, C. J.

The judgment for $ 3,000 which appellants seek to reverse is predicated upon the death of appellee's intestate, a nine-year-old girl. The child was a deaf mute, but in other respects was normal, possessed of a bright mind. She was struck and instantly killed by a fast passenger train at a public crossing in the town of Widener, in St. Francis county, on July 27, 1935. It is alleged in the complaint that in walking southwardly toward the railway she was looking toward the southwest and did not look toward the east from whence the train came, and was oblivious to its approach.

There are three parallel tracks in the town of Widener, where the main line runs east-west. A passing track is immediately north of the main line, and north of the passing track there is a seed house track, the latter, at the time of the tragedy, having been overgrown with weeds and partially obscured by dirt. Highway No. 50 crosses the three tracks in the main part of the town, north and south. The accident occurred at this crossing, near the north side of the main track. The train which struck the child came from the east. A secondary highway or crossing, with stock-gap, is maintained about a block east of the point where highway No. 50 crosses the railway, and there is a seed house north of the railroads. The distance from the south wall of the seed house to the north rail of the main track is 44 1/2 feet. The seed house is approximately 49 x 16 feet, its length of 49 feet paralleling the railways. On the south side of the main line, at a distance of 243 feet from the east edge of highway No. 50, a mail crane is maintained. The distance from the west wall of the seed house to the east edge of highway 50 is 150 feet.

Consideration of these figures will show that the east side of the seed house is 199 feet from the east edge of highway 50, and, therefore, the mail crane to which reference has been made was situated at a point south of the main rail line, 44 feet east of a north and south line that would parallel the east end of the seed house. These distances are important in view of allegations that the engineer was negligent in not discovering the perilous position of appellee's intestate in time to warn her of her danger, or in not checking the speed of the train.

Photographs show that the secondary railway crossing is some distance east of the mail crane, and even farther east of the seed house, and that the distance between the two crossings was substantially more than 243 feet. Two witnesses for appellee stated that the distance was "about a block."

E. A. Rolf, Jr., a witness for appellee, testified that at the time the tragedy occurred he had just driven his automobile from a point in front of Dr. Winter's office to the post office. He said: "The child was coming south [walking on highway 50 from the north toward the series of tracks] when I went by the crossing. When I got down to the post office and got out of the car the train struck the child. I observed the train approaching from the east. When I first observed the train it was beyond the other crossing, which is the first crossing east of the highway 50 crossing. The two crossings are something like a block apart. It whistled beyond the other crossing. The gin and cottonseed house would obstruct the view of the engineer. He [the engineer] would have had to cross the other [east] crossing before his view was clear so he could see the child.

"Q. How far back of highway 50 crossing was it that he blew his distress whistle. A. He was, I imagine, half way between the two crossings. Q. At the mail crane--would that be about the location? A. I imagine so. Q. He blew the distress whistle there? A. Yes, sir."

The witness further testified that, in his opinion, the train was running 50 miles an hour and the engineer did not slow down until after the child had been hit. On cross-examination, the witness testified:

"I was standing looking at the engine and saw the child just before the engine hit her. When I first observed the train coming and took notice of it, it was beyond the crossing--that is, east of the crossing where the accident occurred. I would guess the train was about a block beyond that crossing and about two blocks from the crossing where the accident occurred. At that point the little girl had not moved into position where the engineer could see her. I saw the train coming, and when it blew at the mail crane I got out of my car. When I came out of Dr. Winter's office I had noticed the little girl coming down the road, but up until the train blew I hadn't thought about an accident. I looked when the train sounded an alarm, and I saw an accident was impending. When I got out of my car the little girl was right close to the main track, or had reached it. She was still walking the last I saw. She was struck, I guess, by the pilot beam of the engine about a foot to the right [north] of the center. If the engineer made any effort to stop the train before striking the child, I could not tell it. He ran about a mile before he backed up."

The witness further testified that, in his opinion, the engineer could have seen the child from the time she crossed the house track until she walked onto the main line, but prior to the time she reached the house track, the view was obstructed by the seed house.

William Hendrick, a witness for appellee, testified that the train was near the mail crane when it blew the distress signal. He said: "When I looked toward the crossing the child was walking up on the track, looking west toward Forrest City. I don't know whether she saw the train, or not, because the train obstructed my view. I think the train was about ten minutes late, and that it was running faster than usual. The regular schedule through Widener is 75 miles an hour, and I think he [the engineer] was going faster than that. The engine ran about five or six poles [telephone poles] before it stopped. I think the poles are about 150 feet apart. The way I saw it, it was the north end of the pilot beam that struck the little girl. I didn't see her struck, but just before she was struck. I saw her coming up there, and I had a little girl walk up to see about where she was struck, and it would be right close to the ties-- close to the rail. That was the position she was in when I first saw her. My attention was attracted by the alarm whistle, and by the time I could take the situation in the accident happened. I was sitting about half way between the mail crane and the crossing. When I looked up and saw the little girl the whole thing was taking place. When I first noticed her she was looking west in the opposite direction from which the train was coming. She must have felt the vibration of the train."

Allen Gray, a witness for appellee, testified as follows: "I saw the little Moser girl as she came from Mr. Tankersley's house and then walked to the railroad --just an ordinary walk. About the time she got even with the gin office, which is about 60 feet from the crossing, she turned and walked west, going to the gin office, and then she continued on to the crossing. If she stopped before reaching the track I did not see her. I heard the distress whistle, but don't know where the child was at that time--about 25 feet, I guess, from the track. That was about the distance, I judge, from where I was, that she was from the track when the distress whistle was blown. If she had stopped when the distress whistle was blown she wouldn't have been hit. I signed a statement shortly after the accident, and at the time I gave the statement I was under the impression that she hesitated, or stopped when she was about 30 or 40 feet from the crossing, but at this time I don't know whether she did or not."

T. K. Lewis, a witness for appellee, testified: "I looked and saw the child was very close, and all I could do was hope that she wouldn't get to the track. When I first heard the distress whistle, the train was between the mail crane and the crossing east of the one where the accident happened. For a space of about forty feet there was no obstruction to keep either the little girl from seeing the train or the engineer from seeing the little girl. I heard the train blow before I went into the post office. It blew for the highway crossing and the station. It was when I came out of the post office that I heard the alarm [distress] whistle. The train was then close to the mail crane. I couldn't tell whether the little girl had gotten to the track or not. She was mighty close. From then on everything was happening mighty fast. I heard the alarm and then the accident happened. I didn't pay any attention to his [the engineer] applying the brakes. I didn't see that. Some people saw fire flying from the wheels, but I didn't--I was too excited."

P. D. Stover, a witness for appellants, testified:

"I am a locomotive engineer for the Chicago, Rock Island and Pacific Railway Company and have been fireman and engineer for forty-five years; engineer about thirty-eight years. Thirty-nine years of that time in the service of the Rock Island. I have as a regular run passenger trains 41 and 42 between Little Rock and Memphis. I was the engineer in charge of the train that struck the little girl at Widener in July 1935. It was...