Appeal from Circuit Court, Phillips County; J. M. Jackson, Special Judge
Action by Lampi Rostet Fleming, administratrix of the estate of Carl Allen Fleming, against the Missouri & Arkansas Railway Company to recover damages arising out of the death of deceased in collision between automobile and a train of freight cars. Judgment for defendant, and plaintiff appeals.
Affirmed.
GRIFFIN SMITH, Chief Justice.
We adopt appellant's statement of the case, as follows:
"This appeal is from a directed verdict for the defendant in a suit brought by the administratrix of the estate of Carl Allen Fleming.
"The deceased was killed on the night of October 9, 1935, at approximately 11:30, due to a collision between the automobile he was driving and a train of freight cars belonging to the Missouri and Arkansas Railroad Company, appellee, which had blocked the crossing where Highway No. 70 intersects the railway a short distance west of the town of Wheatley in Monroe county, Arkansas. There is a curve in the highway a short distance west of this crossing and a slight decline from the curve down to the track. There had been a number of serious accidents at the same point prior to this fatal injury and a number thereafter, resulting finally in the construction by the railroad company of an automatic
barrier. The accident happened on a dark, rainy night, and the deceased had never been over this highway before and was at the time on his way from Texas to points east of the Mississippi River.
"According to the testimony offered by appellant, there were no flares or signal lights or any other warnings of the train blocking the highway at the time of the accident.
"The court excluded all evidence of the number of accidents that had happened at this point under similar circumstances, which the appellant had offered for the purpose of proving that there was a dangerous condition of which the railroad company had notice.
"At the close of the plaintiff's case, the defendant moved and was granted a directed verdict, and the case is on appeal here on the questions: (1) Whether the evidence offered by the plaintiff was legally sufficient to support a verdict, tested by the rule that the testimony must be given its strongest probative force in favor of the plaintiff's cause of action. (2) Should the excluded evidence, which would have established that a large number of accidents had occurred at this crossing, have been admitted for the purpose of showing existence of and notice to the railroad company of the hazardous condition of the crossing? (3) Was this injury to the deceased caused by the running of a train which cast the burden of proof upon the railroad company, upon proof of the happening of the accident? (4) Could the deceased be said to be guilty of contributory negligence as a matter of law?"
Gordon Duncan, testifying for appellant, said that he was returning from Memphis to his home in Brinkley. He did not observe any flares at the crossing; was on the east side of the track, but could see under the train of cars; attention was attracted to the blocked highway. A light was shining through between the box cars. The weather was "misting rain and dark".
The question was asked: "I now want to ask you if, in your knowledge and observation, this crossing is dangerous and deceptive to persons approaching it, particularly from the west, going east?"
An objection was sustained.
The witness further testified — "It must have been ten or twelve or fifteen cars from where Mr. Fleming hit the side of the train up to the engine. I do not know just how far it was back to the caboose. It was some distance. * * * It looked as though the [automobile] had hit the train and [had been knocked] sideways. The light of the [automobile] was shining and continued to burn after it was hit. The train was coupled up. * * * As to the curve of the road coming from Brinkley down to the crossing, I would not say exactly. I am by there every week, but I would say it is about 100 yards from the top of the hill; you come up a hill and the curve is around this way [indicating to the left]. The top of the hill is about 100 yards. There is a little decline running to the track."
R. C. Wise had been to Brinkley. After starting home it began to mist, and was cloudy. Witness was with his wife, traveling in their automobile at thirty or thirty-five miles per hour. Half way between Brinkley and Wheatley Fleming passed them, "driving at a high rate of speed — forty to forty-five miles an hour". When witness reached the crossing he could see the tail light of an (automobile). He remarked to Mrs. Wise that it was the car that had passed them, and that it had run into a train. — "As I approached the train a brakeman and flagman came from some point, which to my mind was from between some cars. I know he was coming from the other side of the train, and he flagged me down, thinking there would be another wreck; but I saw the situation before I arrived, and drove on the shoulder of the highway. * * * The two trainmen had lighted lanterns, * * * but had not gotten to the car when we arrived. This is the only crossing accident that I have observed at this place, but I know of others that have happened. I know of four or five that have happened".
Fleming had not previously been over Highway 70 between Brinkley and Wheatley. This fact is relied upon by appellant to distinguish the instant suit from Gillenwater v. Baldwin, Trustee, et al., 192 Ark. 447, 93 S.W.2d 658, 659.
In the Gillenwater case the car driver approached a blocked crossing at a point on the highway with which he was familiar. In the opinion it is said: "The record...
