Fort Smith Light & Traction Company v. Phillips

• Decision Date: 21 October 1918
• Docket Number: 176
• Citation: 206 S.W. 453,136 Ark. 310
• Parties: FORT SMITH LIGHT & TRACTION COMPANY v. PHILLIPS
• Court: Arkansas Supreme Court

206 S.W. 453

136 Ark. 310

FORT SMITH LIGHT & TRACTION COMPANY v. PHILLIPS

No. 176

Supreme Court of Arkansas

October 21, 1918

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

Judgment affirmed. Rehearing denied.

Hill Fitzhugh & Brizzolara, for appellant.

1. No issue for jury as to whether headlight on car was burning. There was no evidence of negligence on the part of defendant in operating its car without a headlight burning.

2. Court erred in refusing to instruct that no presumption of negligence from happening of the accident. The seventh instruction for defendant should have been given. 72 Ark 572-9; 76 P. 560; 27 Id. 371.

3. The deceased had the last chance to avoid the accident, therefore defendant's instruction 1-A and B should have been given. The duty of avoiding the accident was mutual and both parties were required to exercise ordinary care to prevent the accident. Deceased's negligence was complete and he had the last clear chance to avoid accident. 8 Thompson on Negl § 240; 19 So. 863-871; 101 Am. St. Rep. 68-75; 97 Cal. 169; 31 P. 835; 51 A. 421-3; 92 P. 101-5; 40 L.R.A. 172; 29 Cyc. 530-1; 27 L.R.A. (N. S.) 379; 34 S.W. 573; 7 L.R.A. (N. S.) 132; 34 Id. 685; 97 F. 752; 109 P. 178; 115 Id. 151; 53 So. 805.

4. It was error to refuse No. 11. Also error to modify No. 10. 62 Ark. 165; 64 Id. 420; 62 Id. 245; 77 Id. 401; 116 Id. 125.

5. Incompetent evidence was admitted and there is no legal evidence to support the verdict. Contributory negligence was shown. 76 Ark. 356.

Sam R. Chew, for appellee.

1. Negligence was proven. The employees saw him on the track at a public crossing in ample time by the exercise of the slightest care to have avoided the injury. 127 Ark. 377; 42 Id. 321; 80 Id. 169; 81 Id. 231.

2. There are no errors in the instructions. Supra.

OPINION

MCCULLOCH, C. J.

Appellant is a corporation operating under its several franchises a street railroad in each of the cities of Fort Smith and Van Buren, and also an interurban line connecting the two cities. E. Phillips, the husband and father of appellees, was killed in a collision with one of appellant's cars at a road crossing between Fort Smith and Van Buren, and appellees instituted this action to recover damages, alleging negligence on the part of the employees of appellant in charge of the car with which said decedent came into collision.

The collision occurred on the evening of February 11, 1917, about seven o'clock at a road crossing which was a regular stopping place for the interurban cars. Phillips lived within a short distance of this crossing, and on the occasion in question came to the crossing for the purpose of taking passage on a car going into Fort Smith. The railroad between Fort Smith and Van Buren was double-tracked, the north-bound cars from Fort Smith to Van Buren occupying the east track, and the south-bound cars running from Van Buren to Fort Smith occupying the west track. The place where the collision occurred is designated as stop No. 7, and is situated between the car barns of the company on the south and a park nearly two miles to the north. The car with which Phillips collided had come out from Fort Smith on the east track, as usual, but was destined to return to the barn after completing its trip north-bound. It had passengers for points as far north as stop No. 11, but as there was no connecting switch between the tracks less than about two miles to the north, the motorman and conductor reversed the route at stop No. 11--that is to say they changed the trolley, and made the trip back to the barn on the east track.

The testimony adduced by appellee tends to show that it is very unusual for a car to be run south on the east track. Phillips lived east of the tracks and came out at stop No. 7 for the purpose, as before stated, of taking a car for Fort Smith. It was dark at the time, but there was an electric light--an arc light--at stop No. 7. There were three boys about 16 or 17 years of age at play within a distance of about 75 yards of the place where the injury occurred, and those boys were the only eye witnesses except the motorman and conductor. These boys were introduced as witnesses, and upon their testimony appellees relied mainly for support of the charge of negligence against appellant's employees. The testimony of the boys is not altogether harmonious, but when considered together it is sufficient to warrant the conclusion that Phillips walked upon the track at stop No. 7 and stood there under the strong electric light for an appreciable length of time with the car approaching; that he took out his pocketbook and was getting money out of his pocket with which to pay his fare, and that a short time before the car struck him he turned around and made an effort to get off the track but was struck by the car before he could get off. The testimony also tends to show that there was another car approaching at that time on the other track, and that Phillips was misled and confused by the extraordinary circumstance of the car coming toward the south on the east track. The testimony also warrants the conclusion that there was no headlight burning on the car or that it was burning very dimly. One of the boys testified that Phillips stopped within two or three feet of the track and took out his pocketbook and then went on the track as the car approached, but another of the boys testified that Phillips stopped on the track when the car was a considerable distance up the track and took out his pocketbook and then stood there until the car got nearly to him and then turned around for the purpose of getting off the track. The testimony of each of the boys tends to show that Phillips was struck by the fender on the front end of the car while he was on the track.

The motorman testified that he was keeping a lookout and when he got in a short distance of the crossing he saw Phillips running toward the track and that he then applied the air and tried to stop the car, but failed to do so in time and that Phillips came into collision with the corner of the car without getting on the track at all.

Of course, we must accept the testimony in its light most favorable to appellees in testing its sufficiency to sustain the verdict, and we are of the opinion that the testimony is amply sufficient to sustain the verdict. It warrants the conclusion that Phillips went upon the track and stopped under the strong electric light that was burning there and stood there while getting out his pocketbook, and that his perilous situation was discovered, or could by the exercise of proper care have been discovered by the motorman in time to stop the car and prevent the injury. That was the theory upon which the case was submitted to the jury under the court's instructions.

The force of many of appellant's assignments of error depends upon the applicability of what is known as the look-out statute to interurban electric railroads. That statute as originally enacted by the General Assembly of 1891 (Acts 1891, p. 213; Kirby's Digest, sec. 6607) made it the duty "of all persons running trains in this State upon any railroad to keep a constant look-out for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employees of any railroad to keep such lookout, the company owning and operating any such railroad shall be liable" for damages. It was decided by this court in numerous cases that that statute had no application to cases of injuries to trespassers on the track but the statute was amended by the Act of May 26, 1911 (Acts 1911, p. 275) to read as follows:

"It shall be the duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad, shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that...