Choctaw, Oklahoma & Gulf Railroad Co. v. Baskins

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, J.
• Citation: Choctaw, Oklahoma & Gulf Railroad Co. v. Baskins, 93 S.W. 757, 78 Ark. 355 (Ark. 1906)
• Decision Date: 07 April 1906
• Parties: CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. BASKINS

93 S.W. 757

78 Ark. 355

CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. BASKINS

Supreme Court of Arkansas

April 7, 1906

Appeal from Perry Circuit Court; Edward W. Winfield, Judge affirmed.

Judgment affirmed.

E. B Peirce and T. S. Buzbee, for appellant.

1. It was error to refuse defendant's request for a peremptory instruction. A traveler upon the highway is bound to exercise ordinary care and diligence at the intersection of a railway to ascertain whether a train is approaching, in order to avoid collision with it. If he fails to do what an ordinarily prudent person would do under the circumstances, he is guilty of negligence. 54 Ark. 431; 56 Ark. 457. Under the facts in this case it was not necessary for appellant to prove affirmatively that appellee failed to look and listen because it appeared that if he had looked he could have seen. If the passenger train moving out was making noise so as to affect his hearing the approaching freight train, it was the more incumbent on him to look, and not to place himself where by reason of a defect in one eye he could not see the train. 61 Ark. 549; 56 Ark. 271; 61 Ark. 617. See also 62 Ark. 156; 65 Ark. 235; 74 Ark. 372.

2. The court erred in modifying and giving as modified the ninth instruction asked by appellant. That it was the duty of deceased to continue both to look and listen in both directions is the law as settled by this court, and it was material to appellant that the jury be so instructed. 69 Ark. 138; 74 Ark. 372.

3. In view of the age of deceased, the testimony as to the number in his family, only one of his children being a minor, his earning capacity, and the absence of evidence that he contributed anything to the support of his family, the verdict was excessive.

J. F. Sellers and Jno. D. Shackleford, for appellant.

1. That it is the duty of one about to cross a railroad track to look and listen, and to use ordinary care for his own safety, is conceded; but whether or not deceased was guilty of contributory negligence was a question of fact for the jury under proper instructions from the court. Instructions given at appellant's request covered every phase of the case. It will be presumed that the deceased was in the exercise of due care, until the contrary is made to appear. 48 Ark. 333; Ib. 460; 58 Ark. 125; 8 Am. Rep. 811; 18 Am. Rep. 407.

2. It is culpable negligence to push a train backward by a locomotive in a reversed position without warning and in the absence of a lookout. Elliott on Roads and Streets, 611. Under the circumstances, deceased, as a man of ordinary prudence, was not chargeable with same degree of care to look and listen as he would have been had the train been headed the other way. Ib. 616; 8 Am. & Eng. Enc. Law (2 Ed.), 420. Deceased had the right to assume that the train would not be pushed back until he could see that an exception was being made to the usual course; and in the latter case a watchman should have been on the rear car, and signals should have been given, to give warning. 2 Sherman & Redf. on Neg. (5 Ed.), § 471. See also 23 Am. & Eng. Enc. of Law (2 Ed.), 745.

OPINION

MCCULLOCH, J.

This was an action brought by F. P. Baskins, as administrator of the estate of Owington Baskins, deceased, against the Choctaw, Oklahoma & Gulf Railroad Company to recover damages for alleged negligent killing of deceased. He was run over and killed by a train of cars operated by appellant at Casa, Ark., and damages for the benefit of the widow and next of kin of deceased in the sum of $ 2,000 were asked.

Appellant pleaded contributory negligence on the part of deceased, and it is contended now that the court erred in refusing to give a peremptory instruction to the jury to return a verdict in its favor.

The details of the injury, as related by witnesses, were as follows:

The railroad track runs due east and west, and the depot at Casa is situated on the north side of the main track. There is a side track south of the main track, and both intersect a street running due north and south immediately west of the depot. The injury occurred about five o'clock in the afternoon, and a few minutes before the arrival of a passenger train from the east a work train with a caboose or box car attached to the rear end came in from the east, and passed the station, and backed in on the side track to await the arrival and departure of the passenger train. The rear end of the work train stopped on or near the street crossing mentioned above. When the passenger train arrived, deceased started toward the depot from one of the storehouses south of the track, and walked along the west side of the street, going north until he came within a short distance of the track, when he crossed the street diagonally, following a footpath which crossed the track on the east side of the street, and walked upon the side track, and stopped 15 or 20 feet east of the rear end of the caboose or box car. The witness who related these facts said that deceased stopped there from a half minute to a minute and a quarter, when the work train backed up and struck him, and that the end of the train was about 15 or 20 feet from him when it began to move. The work train had been standing there from three to five minutes. The passenger train was then moving out, and was making considerable noise, but no signals were given from the work train either by bell or whistle, and no lookout was kept from the rear end. Deceased was blind in his left eye, the eye on the side next to the work train. There is no evidence that deceased did not look for the moving train, except the fact that it was broad daylight, and he could have seen it if he had been looking that way at the time. It is evident from the testimony that deceased stopped momentarily on the side track awaiting the departure of the passenger train, which was then just moving out from the station, and the rear coach was passing deceased when he was struck by the backing work train.

It is not insisted that the evidence is insufficient to sustain a finding of negligence on the part of the men in charge of the work train in failing to give signals by bell or whistle and in failing to keep a lookout. This is conceded. But appellant contends that deceased could have seen the moving work train if he had looked, and that his failure to see it and get out of the way establishes negligence on his part which prevents a recovery. It is, of course, too plain for controversy that he could have seen the end of the car if he had been looking that way at the moment, but it does not necessarily follow that he was negligent in failing to see it. The doctrine has been repeatedly stated by this court that a traveler approaching a railroad crossing must take notice of the fact that it is a place of danger, and must not only look and listen for the approach of trains before he goes upon the track, but must continue to look and listen until he has passed the point of danger. He must continue his vigilance until the danger is passed, and must look both ways up and down the track. Railway Co. v. Cullen, 54 Ark. 431; Railway Co. v. Tippett, 56 Ark. 457; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549, 33 S.W. 1070; Martin v. L. R. & Ft. S. Ry. Co., 62 Ark. 156; Little Rock & F. S. Ry. Co. v. Blewitt, 65 Ark. 235, 45 S.W. 548; St. L. & S. F. Ry. Co. v. Crabtree, 69 Ark. 134, 62 S.W. 64; St. L., I. M. & S. Ry. Co. v. Johnson, 74 Ark. 372; Tiffin v. St. Louis, I. M. & S. Ry. Co., ante, p. 55.

But, as the traveler is required to look both ways for danger, it is obvious that he can not do so at precisely the same moment. It must be remembered that deceased was upon the track probably not more than half a minute, and in that time he was required to look toward the east as well as toward the west. He would have been guilty of negligence if he failed to do so. It does not appear from the evidence that he did not look both ways before as well as after he went upon the track. He may have done so, and the burden was upon the defendant to show that he did not do so. The work train was headed in an opposite direction, with the rear end standing upon or near the street crossing. There is no proof that deceased knew that an engine was attached to the cars on the side track; but if he did know, he might reasonably have assumed that the train would pull out of the switch forward and not backward. We do not mean to say that this state of facts justified deceased in ignoring the possibility or probability of the train backing toward him and in failing to keep a lookout for such emergency, but it was a circumstance for the jury to consider whether deceased, being at the time under obligation to look both ways for his own safety, might not, in the discharge of that duty, have reasonably relaxed his vigilance to some extent in looking toward the west where this train was situated, and consumed more time than he otherwise would have done in looking toward the east where there was also a possibility of danger. He might have done so consistently with due care. Though he was bound to look both ways, the frequency with which he was bound to change his view depended upon circumstances and the probability of danger to be apprehended,...