Curtis v. St. Louis & San Francisco Railroad Co.

• Decision Date: 07 November 1910
• Parties: CURTIS v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY
• Court: Arkansas Supreme Court

131 S.W. 947

96 Ark. 394

CURTIS v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY

Supreme Court of Arkansas

November 7, 1910

Appeal from Hempstead Circuit Court; Jacob M. Carter, Judge affirmed.

Judgment affirmed.

Hamby & Haynie, for appellant.

Giving the evidence of the plaintiff the consideration most favorable to him, there was a question of fact as to whether he was guilty of such negligence as to preclude a recovery which should have gone to the jury. 89 Ark. 222; 76 Ark. 138; 57 S.E. 764; 39 S.E. 569.

Glass Estes, King & Burford, for appellee.

Plaintiff's attempt to cross the track between the cars to which an engine was attached, or, if not attached, was likely to be at any moment, was contributory negligence as a matter of law, and precluded a recovery. 2 White on Pers. Inj. § 1028; 105 S.W. 385; 104 S.W. 258; 64 Minn. 415; 67 N.W. 223; 101 Mo. 113; 105 Mo. 399; 27 S.W. 717; 69 Ark. 138; 99 S.W. 66; 79 Ark. 625.

OPINION

FRAUENTHAL, J.

This was an action instituted by R. F. Curtis, the plaintiff below, to recover damages for a personal injury which he alleged he sustained by reason of the negligent act of the defendant. The injury was received by plaintiff while he was attempting to pass between freight cars that were attached together in a train which was standing upon a public crossing in the city of Hope. The lower court directed the jury to return a verdict in favor of the defendant, which was done; and from the judgment rendered by the court in pursuance of that ruling the plaintiff has appealed. In determining whether or not the court committed error in directing the jury to return a verdict in favor of the defendant, the rule upon the appeal of the case is to consider the testimony in its most favorable aspect to the plaintiff. Graham v. Thrall, 95 Ark. 560, 129 S.W. 532. Viewing the testimony in this manner, the case is this: The plaintiff, who lives near Hope, came to that city on the day of the injury for the purpose of selling some country produce. The railroad track of the defendant runs in a northerly direction from Second Street to First Street, in said city, and crosses First Street at right angles; and beyond First Street it crosses the railroad tracks of the St. Louis, Iron Mountain & Southern Railway Company, which run parallel with First Street. It is about 400 feet from Second to First Street. On this occasion the plaintiff at about 2 o'clock P. M. crossed the defendant's track several times between these two streets in going from a store upon the east side thereof to a residence on the west side in making sale of his produce. The last time he crossed the railroad track in going to the residence he saw a freight train moving thereon in a northerly direction and towards First Street. After quitting the residence for the purpose of returning to the east side of the railroad track he proceeded to a point about 125 feet west of said track, and saw that the freight train had moved across First Street with the engine attached thereto and was completely blockading the street. He then walked to a point near the train, and looked towards the north end of the train, to which end he had just seen the engine attached, and saw no engine then attached to that end. He remained at this place for about ten minutes, waiting for the train to clear the crossing, and then proceeded towards the south end of the train for a distance of about two car lengths, and saw no engine at the south end of the train. He then returned to the crossing where the freight train was standing upon the street. He testified that at that time he had no idea of attempting to cross over between the cars; but, seeing no engine at the north end of the train, he then attempted to cross between the cars. He caught hold of the ladder upon the inside of the car and placed his foot between the drawheads and thus drew himself up until he was standing on the bumpers between the cars, and at that moment the train moved back towards the south, and his foot was caught between the bumpers or drawheads of the cars, and was crushed to such an extent that amputation of it was necessary. The plaintiff testified that he knew that the freight train was then being made up upon this track by the defendant preparatory to leaving, and that switching thereof was being done for that purpose at that time; and that the freight train was standing not only across the street, but also across the tracks of the St. Louis, Iron Mountain & Southern Railway Company, just beyond the street when he attempted to cross between the attached cars. He testified, however, that, although he had seen an engine attached to the north end of the train a few minutes before making the attempt to cross, he did not see the engine at the moment he attempted to cross, and that at the time the train moved back he heard no bell or whistle. It further appears that it was a violation of the provisions of the ordinances of the city of Hope to obstruct any street at a railroad crossing for a longer period than five minutes at any one time.

It is contended by counsel for appellee that, under the view of the testimony adduced upon the trial of this case most favorable to plaintiff, he was guilty of contributory negligence, and therefore was not entitled to a recovery herein.

It has been repeatedly held by this court that, though the defendant may be guilty of negligence and of a violation of law, still the plaintiff can not recover if his own negligence contributed proximately to the happening of the accident which caused the injury. Johnson v. Stewart, 62 Ark. 164, 34 S.W. 889; St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235, 35 S.W. 216; St. Louis, I. M. & S. Ry. Co. v. Jordan, 65 Ark. 429; St. Louis S.W. Ry. Co. v. Cochran, 77 Ark. 398, 91 S.W. 747; Chicago, R. I. & P. Ry. Co. v. Smith, 94 Ark. 524, 127 S.W. 715.

Thus it has been held that, although a railroad company was guilty of failing to comply with the statutory provisions requiring a lookout to be kept or requiring a bell to be rung or a whistle to be sounded upon approaching a public crossing, yet a party injured by reason of such negligence would not be entitled to recover if he himself was guilty of any negligence which contributed to the happening of the accident which caused the injury. A traveller upon the public street or highway has a right to the use thereof at a railroad crossing, but in approaching such crossing, and in going upon or over it, he must use...