Cook v. St. Louis, I. M. & S. Ry. Co.
| Decision Date | 18 October 1915 |
| Docket Number | (No. 178.) |
| Parties | COOK v. ST. LOUIS, I. M. & S. RY. CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, White County; J. M. Jackson, Judge.
Action by William N. Cook against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant on directed verdict, plaintiff appeals. Reversed and remanded.
Brundidge & Neelly, of Searcy, and Sam M. Wassell, of Little Rock, for appellant. P. R. Andrews, of Helena, and Troy Pace, of Little Rock, for appellee.
Appellant was struck by one of appellee's trains, and sued to recover damages to compensate the injury sustained by him. On the trial of the case before a jury, after the appellant had rested his case, the court, upon motion of appellee, directed the jury to return a verdict in appellee's favor, and this appeal has been prosecuted from the judgment pronounced upon the verdict so returned.
Giving appellant's evidence its highest probative force, as we must do in testing the correctness of the action of the court below, the facts in the case may be stated as follows:
The injury occurred at McRae, which was then an unincorporated village of some 200 persons, and, although appellee maintained a depot there, this was a flag stop station, and that only for local trains. The fast or through trains did not stop there, even upon signal. The line of railroad was double-tracked, the depot being to the east of the tracks, and there was a cinder platform between the depot and the east track for the purpose of accommodating passengers. Trains north-bound were run over the east track, the one next to the station, while south-bound trains ran over the west track. These double tracks had been in use for more than two years, and appellant lived there at the time they were installed and was acquainted with the conditions. The injury occurred about 9 o'clock on the night of November 18, 1913. Appellant went to the depot to take passage on the south-bound passenger train. He was accompanied by his daughter and her husband a Mr. Essig, and when they reached the depot they found it dark, and no one there to signal the passenger train to stop. Mr. Essig had a lantern, and when he heard the passenger train approaching he went between the two tracks and flagged this train. The tracks were straight for more than a mile in both directions, and while Mr. Essig was flagging the passenger train a freight train was approaching on the other track, the engines of the two trains passed each other at the point where Mr. Essig stood with his lantern, and when cars are standing on each track there is a space between them of from 3 to 3½ feet. The witnesses testified that when the passenger train was flagged it responded by blowing one long blast, whereupon appellant and his daughter crossed over between the trains, but before the freight train arrived Mrs. Essig recrossed the track and returned to the platform near the depot. The freight train made no response to the signal with the lantern, and passed through McRae at a speed variously estimated by the witnesses at from 30 to 40 miles per hour.
Prior to appellant's injury it was customary for passengers who desired to board south-bound trains to stand between these tracks as the train approached, and that this was the usual thing for persons to do who expected to take passage on south-bound trains, and this custom had been in force ever since the double track had been built up to the time of appellant's injury. At the time the passenger train was flagged, it was about a quarter of a mile away, while the freight train, which was approaching in the opposite direction, was then about one mile distant. Appellant and Mr. Essig did not know what the freight would do, but they got between the tracks, so that they would not miss the passenger train, and that they did not think there would be any danger, because they supposed the passenger train would stop for the passengers to get on, and that they thought the freight train would stop below the public crossing near the depot, for the reason that the lantern had been waived in plain view of the approaching freight train, and the engineer of that train would be aware of their presence and purpose. Appellant and Mr. Essig did not cross entirely over to the west side of the track, because there was a ditch there, and the train was a vestibuled one, and the cars were not opened on the west side, and the passenger train could have been entered only on the east side. Appellant knew that the passenger train made only very short stops at McRae, and he feared that he would miss the train if he was not in position to enter it immediately after it stopped. As the freight train passed the passenger train, appellant became panic-stricken and, although Mr. Essig sought to restrain him, he stepped away from the freight train far enough to be struck by the beam on the passenger engine. Had he remained standing still, as Mr. Essig did, he would not have been injured; but he stepped back involuntarily because of his fright.
It does not appear whether the court directed a verdict because the proof failed to show that the railroad company was guilty of any negligence, or because it did show that appellant was guilty of contributory negligence; but appellee insists that the verdict was properly directed in its favor under either view. We think the jury might very well have found from the evidence that appellant should not have gone between the trains, and such a finding would not be disturbed by us. But we cannot say that the jury must necessarily have taken this view of the evidence, and that reasonable minds could not fairly reach any conclusion, except that appellant was guilty of contributory negligence. The jury must have found, as testified to by appellant, that a custom existed prior to his injury for passengers to stand between the tracks as an approaching train was being flagged, and that the engineer of the freight train saw or should have seen appellant, and should have known his purpose in standing between the tracks.
The law sets up for both the railroad company and the appellant the same standard of duty, and that is to exercise ordinary care to avoid the infliction of an injury and to avoid being injured; but as to what would be ordinary care in a particular case depends upon the exigencies of that situation. In determining the questions of negligence and contributory negligence involved in this case, it is proper to bear in mind that both appellant and the operatives of the train had the right to assume that the other would be guilty of no negligent act, nor be guilty of contributory negligence. Applying these tests, it may be asked: Would a reasonably prudent man have had the right to believe that an invitation was extended under the circumstances to stand between the tracks as the trains approached each other? If there was such an invitation, then there was an implied assurance that the space between the tracks was safe. But there could be no such invitation or assurance if it appeared to a reasonably prudent person, exercising ordinary care for his own safety, that it was not safe to stand between the tracks; that is, appellant could not place himself in a position of peril, and excuse himself for being...
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