Davis v. Scott

• Decision Date: 12 December 1921
• Docket Number: 32
• Citation: 235 S.W. 407,151 Ark. 34
• Parties: DAVIS v. SCOTT
• Court: Arkansas Supreme Court

235 S.W. 407

151 Ark. 34

DAVIS v. SCOTT

No. 32

Supreme Court of Arkansas

December 12, 1921

Appeal from Yell Circuit Court, Danville District; A. B. Priddy Judge; reversed.

Judgment reversed and cause remanded.

Thomas S. Buzbee and George B. Pugh, for appellant.

The court should have directed a verdict for defendant. The facts did not justify a submission of the question to the jury. 107 Ark. 431; 97 Ark. 560; 129 Ark. 77.

The testimony is not sufficient to show negligence in the speed maintained by the train. 63 Ark. 177; 84 Ark. 270.

The plaintiff, knowing his physical defect, was guilty of negligence in going upon the track in front of the approaching train. 150 S.W. 29; 33 S.W. 396.

Damages cannot be recovered where the testimony shows that the employees exercised all ordinary and reasonable care and diligence to avoid injury. 72 So. 283; 70 So. 998. See also 51 Fla. 304; 41 So. 70; 53 Fla. 375; 43 So. 235; 70 So. 437.

The damages were not diminished in proportion to the amount of negligence attributable to plaintiff. 58 So. 641.

Wilson & Chambers and Evans & Evans, for appellees.

1. It was not error to refuse a peremptory instruction. Since the enactment of act No. 156, Acts 1919, p. 143, contributory negligence is no defense unless it also appears that such contributory negligence is equal to or greater than the negligence of the railroad causing the injury or death. 146 Ark. 555. On the question of Scott's contributory negligence, if any, in undertaking to cross the track, the jury had the right to take into consideration the fact that the statutory warnings were not given. 138 Ark. 589; 63 Id. 182, 184. The appellant was under the duty to moderate the speed of the train in approaching this community, and to anticipate the presence of, and to exercise due care for the protection of, pedestrians. 203 S.W. 740; 172 P. 108; 190 Id. 385; 164 F. 785, 22 L. R. A. (N S.) 350; 145 Ark. 592; 80 So. 708. The lookout statute requires a constant lookout for persons or property on or near the track. To what purpose, if a train is to be allowed to run at such high speed that the danger cannot be avoided when discovered? 184 P. 765; 190 P. 385; 30 W.Va. 228; 4 S.E 242; 79 Pa. 33; 2 Ohio Dec. 252; 113 Pa. 610, 6 A. 238; 138 Pa. 506, 21 A. 140, 21 Am. Rep. 914; 33 Cyc. 808; 90 S.W. 918; 22 R. C. L. 947; 30 So. 285, 106 La. 111; 101 Miss. 768; 81 Id. 95, 32 So. 311; 146 Ky. 603, 143 S.W. 31.

Scott was not a trespasser, but was crossing the. track at the station along a beaten path used by pedestrians. 65 Ark. 235; 70 Id. 481; 112 Id. 401; 112 Id. 401; 136 Id. 310; 81 Id. 275; 140 Id. 68; Id. 80; 116 Id. 47.

MCCULLOCH, C. J. HART, J., dissents.

OPINION

MCCULLOCH, C. J.

Berry Scott was run over and killed at the town of Belleville, in Yell County, by the locomotive of a freight train on the railroad of the Chicago, Rock Island & Pacific Railway Company, then being operated under Government control. This is an action instituted in the circuit court of Yell County (Danville District) against the Director General of Railroads, as agent, to recover compensation for injuries resulting to the widow and next of kin of said decedent by reason of the latter's death. The damages were laid in the sum of $ 3,000, and on the trial of the case the jury awarded damages in the sum of $ 2,500 in favor of the plaintiffs.

The charges of negligence are, that the train was operated at an excessive and unusual rate of speed; that signals by bell or whistle were not given as required by law; that no lookout was kept, and that ordinary care was not taken to prevent the injury after discovery of Scott's perilous position while approaching the track. The answer contains a denial of the charges of negligence, and also contains a plea of contributory negligence on the part of decedent. It is contended, in the first place, that the evidence was not sufficient to justify a recovery, and that the court should have given a peremptory instruction in favor of the defendant.

Deceased was entirely deaf, and it appears that his powers of speech were limited, though he was not altogether a mute. He could speak to some extent. He was a farmer, about 35 years of age, strong, healthy, alert and quick-minded, and resided on a farm a few miles distant from Belleville. He came to Belleville on Sunday, September 14, 1919, to bring his sister-in- law and her son, who were to take train for Oklahoma. The party arrived at Belleville shortly after noon and were awaiting the arrival of the passenger train due several hours later, going westward. Deceased hitched his team in a grove about 75 or 100 yards north of the railroad track and northeast of the station. The party then repaired to the station-house to await the coming of the passenger train. The freight train which ran over deceased came from the west. It was a fast train not running on schedule time, and did not stop at Belleville. There was a considerable grade for a half-mile or more approaching Belleville from the west, and there was a curve in the track several hundred yards west of the station. The waiting- room for white passengers, where deceased and his party were waiting, was on the west end of the station, and there was a window on that end, through which the track could be seen for a certain distance. There is a little conflict in the testimony as to how far one could see up the track towards the west from this window. There is testimony to the effect that a potato house about 300 feet to the west obscures the view beyond that point, and there is other testimony to the effect that the view was obscured to the distance of 75 or 100 feet. The track runs substantially east and west along there, and the town of Belleville is built up on both sides of the track, the business houses on each side facing the railroad. The main street of the town, running north and south, intersects the railroad track about 50 or 75 feet west of the station, and another street, running in the same direction, intersects the track about 100 feet still further west. There is another crossing east of the station, and there is a pathway, commonly used as an approach to the station, running across the track from a point immediately north of the colored waiting-room, on the east end of the station, diagonally northward near a little flower garden.

There is a conflict in the testimony as to the rate of speed the train was making at the time, and whether it was under power in coming down the grade on this occasion. The testimony adduced by the plaintiff tended to show that the train was running at an unusual speed, about 35 miles an hour, and that it was not merely rolling down the grade, but was under power. The engineer testified that he was running at a rate of about 25 miles an hour. When the train approached from the west, Mrs. Lizzie Scott, sister-in-law of deceased, who was with him in the waiting room, noticed the smoke of the train and heard the whistle, but before it came in sight she spelled in the mute language of the fingers the words "black smoke." Deceased made no direct reply, but in a moment said, "Oh, my mules!" and dashed out of the door of the waiting room, going in the direction of his team, which was still hitched in the grove north of the track. Mrs. Scott, seeing the danger, called to her grown son to "grab him, grab him," and her son started after deceased to prevent him from crossing the track, which was about 20 feet distant from the station- room door. Deceased reached the railroad track, and about that time Esco Scott, his nephew, caught up with him and attempted to interfere with his crossing the track, but did not succeed, and deceased was struck by the train and instantly killed. His body was carried a short distance down the track. There is evidence tending to show that the attempt to cross the track by deceased was at or near the path or crossing referred to above, which ran along near the flower garden. There was evidence tending to show that, although the train whistled for the station, the signals by bell or whistle were not continued as required by law until the street crossings were passed. The engineer testified that he was on the lookout and saw the deceased come out of the station door and approach the track, and that he at once gave the signal for brakes, threw on the emergency and made an unusually short stop. It is undisputed that, according to the rate of speed the train was making, the stop was unusually quick after the brakes were applied. There were 25 or 30 cars in the train and the train was stopped within a distance of about three-fourths of its length. It is undisputed that the engineer was keeping a lookout. His testimony on that subject is reasonable and consistent, and there is no other testimony in conflict with it. He testified that he saw deceased when he came out of the door of the station-house, approaching the track, and it is undisputed that the train made an unusually quick stop. The charge of negligence in that respect is therefore unfounded.

There is evidence tending to show that the signals were not given as required by law, but the negligence in that regard was not the proximate cause of the injury. It is undisputed that deceased knew that the train was approaching from the west, and, being totally deaf, the signals would not have afforded any additional warning to him. Under these circumstances, the failure to give the signals could not have been the proximate cause of the injury. St. L. I. M. & S. Ry. Co. v. Denty, 63 Ark. 177; St. L. & S. F. R. Co. v. Ferrell, 84 Ark. 270, 105 S.W. 263; Todd v. St. L. I. M. & S. Ry. Co., 106 Ark. 390; Tyler v. St. L. I. M. & S. Ry. Co. 130 Ark. 583; C. R. I. & P. Ry. Co. v. Elzen, 132 Ark. 431.

But we think that the...