Cook v. Missouri Pac. R. Co.

• Decision Date: 15 October 1923
• Docket Number: (No. 178.)
• Citation: 254 S.W. 680
• Parties: COOK v. MISSOURI PAC. R. CO.
• Court: Arkansas Supreme Court

Page 680

254 S.W. 680

COOK v. MISSOURI PAC. R. CO.

(No. 178.)

Supreme Court of Arkansas.

October 15, 1923.

Appeal from Circuit Court, Phillips County; J. M. Jackson, Judge.

Action by Alex Cook against the Missouri Pacific Railroad Company. The court directed a verdict for defendant and from the judgment plaintiff appeals. Reversed and remanded.

A. D. Whitehead, of Helena, for appellant.

Thos. B. Pryor, of Ft. Smith, and Daggett & Daggett, of Marianna, for appellee.

SMITH, J.

Plaintiff, Alex Cook, sued to recover damages to compensate a personal injury which he sustained by being struck by a motor car operated by the defendant railroad company while attempting to cross the railroad track at Pillow's Crossing in Phillips county. He sought to prove that his injuries were received as a result of the negligence of the employees of the railroad company in failing to keep a lookout at the crossing and in running the car at an excessive speed as it approached the crossing. There was testimony from which the jury might have found that the railroad was negligent in one or both of these respects. The defendant denied the material allegations of the complaint, and pleaded contributory negligence of the plaintiff in bar of the action. At the conclusion of all the testimony heard at the trial, counsel for the railroad company submitted the proposition to the court that the defendant railroad company was entitled to have the jury return a verdict in its favor on the ground that the evidence showed that the plaintiff was guilty of contributory negligence. This view was accepted by the court, and a verdict in favor of the defendant was directed, and this appeal is from the judgment rendered on that verdict.

Plaintiff and his son, Henry Cook, and a man named Shelton were driving west from Helena, in a two-horse wagon owned by plaintiff, about half past 4 one afternoon. The road on which they were driving entered a cut in the earth, which began about 35 or 40 yards from the railroad track, and was about 6 or 7 feet deep at the point where the public road crossed the railroad track, and as the crossing was a surface crossing, the railroad track was, of course, 6 or 7 feet lower than the top of the ground, and the railroad track runs in this cut for about 75 yards before it crosses the public road.

Henry Cook testified that he was driving the wagon, and that the team had been in a slow trot until he arrived at the top of the little hill, when he checked up the team and looked in both directions, but he neither saw nor heard anything. The other occupants of the wagon also testified that they, too, looked and listened without seeing or hearing anything. The witness Henry Cook testified that for the distance of 35 or 40 yards through the cut to the railroad track he drove in a slow walk, and just before reaching the track slowed the team up almost to a stop, when he and the other occupants of the wagon looked and listened, but they saw nothing and heard nothing, and the witness drove onto the track, and as he did so, he saw the motor car approaching a short distance away. There was no escape except to drive forward...