fort Smith & Western Railway Company v. Messek

• Decision Date: 24 October 1910
• Parties: FORT SMITH & WESTERN RAILWAY COMPANY v. MESSEK
• Court: Arkansas Supreme Court

131 S.W. 686

96 Ark. 243

FORT SMITH & WESTERN RAILWAY COMPANY v. MESSEK

Supreme Court of Arkansas

October 24, 1910

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

Judgment affirmed.

C. E. & H. P. Warner, for appellant.

By the allegations of his complaint and his own testimony appellee has shown that the injury resulted from his own negligence. 61 Ark. 556; 65 Ark. 236; 69 Ark. 139; 49 Ark. 458; 64 Ark 363; Id. 360; 61 Ark. 620; 79 Ark. 228; 80 Ark. 188; 91 Ark. 18; 94 Ark. 524; 95 Ark. 190; 127 S.W. 715; 65 Ark 239; 84 Ark. 275; 125 N.Y. 407; 103 Ind. 312; 9 F. 867; 95 U.S. 542; 60 N.W. 57; 128 Ind. 138; 105 Mass. 77; 24 A. 747; 42 N.W. 24; 75 N.Y. 273; 25 Mich. 274.

Jo Johnson, for appellee.

OPINION

HART, J.

John Messek brought this action against the Fort Smith & Western Railway Company to recover damages for personal injuries sustained by himself, alleged to have been caused by reason of having been struck by one of defendant's engines on a public crossing in the city of Fort Smith. The defendant answered, denying negligence on its part and pleading contributory negligence on the part of the plaintiff. There was a jury trial, resulting in a verdict and judgment for plaintiff, from which this appeal is prosecuted.

The first assignment of error (and to our minds the most serious question in the case) presents the question of whether the evidence supports the verdict.

The plaintiff was a native of Poland, and spoke the English language imperfectly. He was a witness in his own behalf, and was examined through an interpreter. He said that he was a coal miner, and lived at Denning, Arkansas. That in September, 1909, he was in the city of Fort Smith, Arkansas, visiting a friend of his named John Boterus. That on the day he was injured he started with Boterus to deliver some goods to a customer of the latter. They went in a spring wagon owned by Boterus, and drawn by one horse. It was necessary to cross the track of the defendant company at D Street. This was a public crossing, and the defendant company had seven tracks there. They reached the crossing sometime after 7 o'clock in the evening. In the language of the plaintiff, "it was just sun down, dusk; it was not dark, and it was not bright daylight." There were seven railroad tracks at the crossing, and the plaintiff and Boterus were going west. When in about ten feet of the first track, they stopped, and plaintiff said to Boterus: "Do you think it is all right to go across these tracks? Is there anything that can strike us?" Boterus replied, "No, everything is still, and we will cross." They saw an engine standing still above them, but everything was quiet. As they got on the last track, an engine struck their wagon. Plaintiff says that he knows that engines give signals by ringing the bell and sounding the whistle as they approach a public road crossing. He says that he listened as they crossed the tracks, but that he heard no ringing of the bell, sounding the whistle, or movement of the engine; that the first he knew of the approach of the engine it struck the wagon in which he was riding. He said that there was no headlight on the engine, and that the wagon was at about the center of the crossing on the last track when it was struck. There is no contention that the verdict was excessive. Hence it is not necessary to abstract the testimony as to the character and extent of the plaintiff's injuries.

The witnesses for the defendant say that the accident occurred "just about dusk between 7 and 8 o'clock." The engine had been on the cinder pit, where its fires were emptied. The headlight on the engine was not lighted; but there was a lamp set on the tank just back of the cab. The engine was making steam. The hostler and his assistant started to move the engine from the cinder pit to a storage track, and in so doing it was necessary to cross the public road where plaintiff was injured. The hostler walked ahead of the engine to throw a switch and was carrying a lamp. He had walked across the public crossing, and was throwing the switch when the wagon was struck. He did not see the wagon until after it was struck by the engine. His assistant was on the engine, and says he was keeping a lookout, but did not see the wagon until just as the engine struck it. Said he was on the right hand side of the engine, and the plaintiff came from the left hand side. That if he had been on the left hand side he would probably have seen them. Said that when he got upon the engine at the cinder pit he rang the bell; that the front of the engine was about fifteen feet from the street when he started through.

There is sufficient evidence to establish negligence on the part of the defendant. According to the testimony of the plaintiff, the servants of the defendant neither rang the bell nor sounded the whistle as they approached the crossing. The statute requires these signals to be given for the purpose of warning persons of the approach of the train in order that they may not get in its way.

In determining whether the question of contributory negligence of the plaintiff should have been submitted to the jury, the evidence must be considered in its most favorable light to the plaintiff. The facts in this case are very similar to those in the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Johnson, 74 Ark. 372, 86 S.W. 282, where a verdict for the plaintiff was sustained.

The evidence shows that the plaintiff and his companion before starting across stopped their horse and looked up and down the tracks. They neither saw nor heard any trains approaching. They did see an engine on one of the tracks but, on account of it not having any headlight, they might have inferred that it was stored on the track for the night. They then proceeded across the tracks, and while the plaintiff does not directly state that he continued to look, his testimony unmistakably shows that his senses were on the alert during the whole time he was on the railroad crossing. He says positively that it was dusk, that everything was quiet, and that he listened for signals or warnings of the approach of trains and heard none. The jury had a right to take into consideration all the surrounding circumstances, such as the situation of the plaintiff, his degree of attention and his alertness. The defendant's witnesses, although they were on the lookout for persons and teams as the engine approached the crossing, did not see the wagon in which the plaintiff and his companion were riding. It was...