Davis v. Hareford

• Decision Date: 27 November 1922
• Docket Number: 9
• Citation: 245 S.W. 833,156 Ark. 67
• Parties: DAVIS v. HAREFORD
• Court: Arkansas Supreme Court

245 S.W. 833

156 Ark. 67

DAVIS v. HAREFORD

No. 9

Supreme Court of Arkansas

November 27, 1922

Appeal from Crawford Circuit Court; James Cochran, Judge; affirmed.

STATEMENT OF FACTS.

Appellee sued appellant to recover damages for personal injuries sustained by him by one of appellant's passenger trains striking an automobile in which he and members of his family were riding.

Charles Hareford was forty-six years old at the time the accident happened, and had lived about 100 yards from the tracks of the railroad company, about half-way between Dyer and Mulberry, in Crawford County, Ark., for 15 years. On the 12th day of September, 1919, in company with his son, his little daughter and two young ladies, he started from his home towards Mulberry in a Briscoe automobile at about two o'clock in the afternoon. He crossed the track and turned in a general southeasterly direction along the south side of the track into a public road separated by a fence from the railroad right-of-way to a crossing about three-quarters of a mile from his home. In attempting to pass over this railroad crossing his car was struck by a passenger train and entirely demolished. The appellee was severely injured and his daughter and the two young ladies were killed. His son jumped from the car and escaped injury.

About 75 yards back from the crossing appellee came to a stop, and then drove up a hill towards a point where he turned on the right-of-way of the railroad company. The railroad right-of-way is about 100 feet wide, with the track in the middle of it. He drove fifty feet up the hill and stopped again. As he approached the right-of-way there were bushes which, to a certain extent, obstructed his view, and he told his son to keep a lookout. His son was thirteen years of age at the time, and the last he saw of him before the accident he had one foot on the running board ready to jump from the car. When appellee first heard the train, it was right on him. He had listened for the train, if approaching, to blow the whistle or ring the bell, and if he had heard this warning he would have stopped his car. He did not hear any alarm given by the train until he was about 10 feet from the track, and then he saw the engine. He applied the emergency brake at once, but could not stop the car in time to prevent the train from striking it. Appellee was looking towards the west, the direction from which the train came, as he approached the crossing, and was listening and looking to ascertain if a train was approaching. He had a good emergency brake on the car. When he got to the top of the hill, he was at the best point of observation of the track, and was running something like seven or eight miles an hour. There was no train in sight, and he could not hear one approaching. He then proceeded down the little hill towards the crossing and never saw the train or heard any alarm given by it as he approached the crossing. The first he heard of the train was practically when he was about ten feet from the track and the train came into view. He could have heard the train if there had been any signals given by ringing the bell or blowing the whistle. He was listening for the approach of the train. The bushes between the road and the track as he approached the crossing were all the way from four to seven feet high, and covered up the right-of-way fence down to the cattle guard. He stated further that he had only owned the Briscoe car about three months, and $ 1,100 was its standard price. Appellee was severely injured in his spine, his head and his left leg. He was unconscious for forty-eight hours after he was struck. He has suffered from the injury in his spine ever since the accident. His daughter was past nine years of age and was a girl of more than average intelligence. She was a great help to her mother.

According to the testimony of Elmer Wright, he was working on a section of the railroad, at the time appellee was injured, about a quarter of a mile from the crossing. The engineer did not whistle for the crossing, and the bell was not ringing when the train passed him going towards the crossing.

Two other witnesses testified that bushes were allowed to grow up along the right-of-way fence down to the cattle guard, and that they were from four to six feet high. Still other witnesses testified that they saw appellee approaching the crossing in his car, and that the statutory signals of ringing the bell or blowing the whistle were not given.

C. F Edrington, the engineer of the train, was the principal witness for appellant. According to his testimony, he had been a locomotive engineer for thirty-three years, and was the engineer on the engine which hit the automobile of appellee. He was running between 30 and 35 miles an hour towards the crossing. He sounded the whistle and turned on the air as he approached it. This rings the bell automatically until it is turned off. He was keeping a lookout, and first saw the automobile twelve or fifteen feet from the engine. He immediately applied the emergency brake and whistled the alarm signal. He struck the automobile between the hood and the wind-shield, and that threw the back end of the car into the driving wheels of the engine. The bell was still ringing when the accident occurred.

Other witnesses for appellant testified that the signal for the crossing was given by blowing the whistle, and that the bell was kept ringing until the accident happened.

Raymond Hareford, the thirteen-year-old son of appellee, had been a witness on the first trial of the case, but was absent in Oklahoma at the time of the trial of the present case in the court below. The court allowed his former testimony to be read as evidence to the jury. According to his testimony, he was on the front seat of the car with his father, and had gotten on the running board just before the train hit the car. The car was going slow, and the front wheels had just got on the track when the train hit it. They had slowed up the automobile on the hill by the bushes and looked and listened for the train, but could neither see nor hear it. Raymond first saw the train about twenty feet away, and got out on the running board and jumped from the automobile. When his father saw the train, he applied the brake, but the brake slipped and would not hold. If the brake had not slipped, there was plenty of room to stop the car before it got on the track, and the train would not have hit it. His father killed the engine and threw on the brake. The brake was defective. It had been slipping and would not hold. The emergency brake was defective and would not hold.

In rebuttal appellee testified that he turned the current off and put on the emergency brake when he saw the train, and that there was nothing wrong with the brake.

The jury returned a verdict for appellee in the sum of $ 6,000, and from the judgment rendered appellant has duly prosecuted an appeal to this court.

Judgment affirmed.

Thos. B. Pryor and Vincent M. Miles, for appellant.

It was error to refuse appellant's requested instruction No. 12. Appellant, if liable at all, under the allegations of the complaint, was only liable under the doctrine of respondeat superior. See 143 Ark. 376. Section 8575, C. & M. Digest, does not provide for a different rule of liability as between Edrington, the engineer, and Davis, as held by the trial court. There could be no liability against Davis, without liability against Edrington. Instruction No. 9 requested by appellant should have been given. There was testimony to support the theory that the accident was caused by the brake on the automobile slipping, which if true, would have been the proximate cause of the accident, and therefore no liability on the part of defendant. 97 Ark. 576. Instruction No. 3 on the question of keeping a lookout should have been given. It is not necessary that both the fireman and engineer keep a lookout on a straight track. 93 Ark. 24. Instructions 5 and 6 on the question of contributory negligence in reduction of damages should have been given without modification. Such acts were applicable to the government operating the railroads. Dahn v. Davis, U. S. Sup. Ct., 42 S. C. Rep. 320.

Starbird & Starbird, for appellee.

Proof of the injury made a prima facie case against Davis (but not against Edrington), and the burden was on him to disprove the alleged acts of negligence. C. & M. Digest, sec. 8562; 87 Ark. 308; 88 Ark. 12; 117 Ark. 504; 139 Ark. 261; 127 Ark. 323. Instruction No. 12 requested by appellant was therefore properly refused. Instructions 9 and 10 were also properly refused. The question of proximate cause is one for the jury. 97 Ark. 584; 104 Ark. 62. The instructions were based upon only a part of the facts, which is not good practice. 141 Ark. 25. A proper lookout on the part of appellant would have discovered the automobile in time to have prevented the accident. 136 Ark. 259. Appellee had a right to rely upon the statutory signals being given. 136 Ark. 8; 138 Ark. 589.

HART J., SMITH, J., dissents.

OPINION

HART, J., (after stating the facts).

It is first earnestly insisted that the evidence is not legally sufficient to warrant the verdict. In this contention we cannot agree with counsel for appellant. The undisputed evidence shows that the injuries sustained by appellee were caused by the engine of one of appellant's passenger trains striking an automobile in which appellee and other members of his family were riding. The accident happened while they were attempting to cross the railroad track of appellant at a public road crossing. Under our statute this proof was sufficient to make out a ...