Cook v. Missouri Pacific Railroad Co.

• Decision Date: 15 October 1923
• Docket Number: 178
• Citation: 254 S.W. 680,160 Ark. 523
• Parties: COOK v. MISSOURI PACIFIC RAILROAD COMPANY
• Court: Arkansas Supreme Court

254 S.W. 680

160 Ark. 523

COOK v. MISSOURI PACIFIC RAILROAD COMPANY

No. 178

Supreme Court of Arkansas

October 15, 1923

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

Judgment reversed, and cause remanded.

A D. Whitehead, for appellant.

The court erred in directing a verdict for the defendant. 115 Ark. 346; 97 Ark. 405; 33 Cyc. 1019; 22 R. C. L. 1027; 138 Ark. 589; 137 Ark. 6.

Thos B. Pryor and Daggett & Daggett for, appellee.

A traveler approaching a railroad crossing is charged with the knowledge that it is a place of danger, and that he must therefore exercise that degree of care which an ordinarily prudent person would exercise under similar circumstances. 117 Ark. 457; 56 Ark. 457; 54 Ark. 431; 81 Ark. 325; 136 Ark 1; 137 Ark. 6; 138 Ark. 589.

OPINION

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 four one afternoon. The road on which they were driving entered a cut in the earth, which began about thirty-five or forty yards from the railroad track, and was about six or seven 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, six or seven feet lower than the top of the ground, and the railroad track runs in this cut for about seventy-five 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 thirty-five or forty 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 on to 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 testimony tends to support the inference either (1) that no lookout was being kept by the persons on the motor-car; or (2) that, if a lookout was being kept, the car was being operated at a speed so...