Cook v. Missouri Pac. Ry. Co.

• Decision Date: 30 November 1925
• Docket Number: (No. 22.)
• Citation: 277 S.W. 345
• Parties: COOK v. MISSOURI PAC. RY. CO.
• Court: Arkansas Supreme Court

Page 345

277 S.W. 345

COOK v. MISSOURI PAC. RY. CO.

(No. 22.)

Supreme Court of Arkansas.

November 30, 1925.

Appeal from Circuit Court, Phillips County; E. D. Robertson, Judge.

Action by Alex Cook against the Missouri Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

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

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

WOOD, J.

This is an action by the appellant against the appellee to recover damages for personal injuries alleged to have been received as the result of the negligence of appellee's servants in failing to keep a lookout and in running a motor car at an excessive rate of speed as it approached the crossing at Pillow's Station in Phillips county, Ark. The appellee denied the material allegations of the complaint, and set up the affirmative defense of contributory negligence on the part of the appellant.

This is the second appeal in the case. See 160 Ark. 523, 254 S. W. 680. On the first appeal the cause was reversed for an error of the court in instructing the jury to return a verdict in favor of the appellee. The testimony on the second trial, from which this appeal comes, was substantially the same as at the first trial. The facts, briefly stated on the first appeal, are set forth at page 524 of the opinion (254 S. W. 680) as follows:

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 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 rapidly, and this the driver did by striking the animals to accelerate their speed, but before the wagon was entirely across the track the motor car hit the rear wheel of the wagon, and overturned it, and injured the plaintiff."

The court gave on the second trial appellee's prayers for instructions Nos. 2, 3, and 4. Prayer for instruction No. 2 was an instruction concerning the duty of a traveler on a highway approaching a railroad crossing. The instruction is substantially a declaration of law as announced in numerous decisions of this court. No useful purpose could be served by setting it out and commenting upon it. The court did not err in giving the appellee's prayer for instruction No. 2 defining the duty of a traveler approaching a crossing and submitting to the jury the issue as to whether or not the appellant was guilty of contributory negligence.

In appellee's prayer for instruction No. 3 the jury were told, in effect, that it was the duty of employees of the appellee to maintain a constant lookout for persons or property on the track of the appellee, and to exercise reasonable care in the operation of the motor car so as to avoid striking and injuring persons or property; and the concluding paragraph of the instruction in effect told the jury that, even if they should find that the employees of the appellee failed to keep a lookout for travelers at the crossing, nevertheless the appellee would not be liable if the jury should find under the evidence that the appellant was guilty of contributory negligence by not stopping, looking, and listening for the approach of the motor...