Garrison v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 06 December 1909
• Citation: 123 S.W. 657
• Parties: GARRISON v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

123 S.W. 657

GARRISON v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Arkansas.

December 6, 1909.

Appeal from Circuit Court, Nevada County; J. M. Carter, Judge.

Action by Phil Garrison, a minor, by his next friend, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This was an action instituted by the plaintiff below, Phil Garrison, by his next friend, against the St. Louis, Iron Mountain & Southern Railway Company for the recovery of damages on account of personal injuries sustained by being struck by a train of defendant while attempting to drive a wagon across its track at a public crossing in the city of Prescott, Ark. In his complaint he alleged that, while he was thus attempting to cross the track at the public crossing, "the train came gliding along noislessly and without warning or blowing its whistle, or ringing its bell, and through the negligence, willfulness, and wantonness of those in charge of the train struck the wagon and threw the plaintiff on the ground, bruising and wounding him on the head, face, side, and back, and knocking him senseless and unconscious." The defendant denied all acts of negligence on its part; and alleged that, if the plaintiff was injured, it was on account of his own acts of contributory negligence.

The testimony on the part of the plaintiff tended to prove that on the morning of October 23, 1908, he was driving along a street that runs parallel with the railroad track and about 60 feet distant therefrom. He was in a wagon going south and in the direction of the depot, and he was attracted towards and intently looking at a large crowd of people who were congregated at the depot. While he was thus driving along this street the defendant's train approached from the north and at his back, and for a considerable distance the fireman on the train saw him thus driving along the street. When the plaintiff got to the street that crossed over the track, he turned into that street, and then drove over a side track and on to the main track, and the train struck the rear end of the wagon, knocking the plaintiff out of the wagon and onto the ground. At the time the plaintiff approached the crossing and was attempting to go over it, he did not slacken his progress, and did not look or seemingly listen for a train. He did not see the train, but was seemingly entirely oblivious of it, and was intently looking towards the large crowd of people at the depot, which was about 350 feet from the crossing. The train had given one long whistle for the station about one quarter of a mile distant; and the testimony on the part of the plaintiff tended to prove that no bell was rung and no whistle blown from that point until just at the time the train struck the wagon, when two or three blasts of the whistle were blown. The fireman saw the plaintiff for some distance as the train approached him from the rear, and when he turned and attempted to cross the track. When the fireman saw the plaintiff drive on the track and thus realized his perilous position, the train was about 100 feet from the crossing, and he at once notified the engineer. The engineer applied the brakes and made every effort to stop the train, but could not do so in time to avoid the collision on account of the speed of the train. But the bell was not rung and the whistle was not blown, and no danger signal was given. The plaintiff was a minor, and the testimony tended to prove that he was about 16 years old and of little intelligence; and, as one witness expressed it, he was not bright.

The plaintiff requested the court to give the following instructions, but the court refused to give any of them:

"(1) You are instructed that if you find from the evidence that the plaintiff, Phil Garrison, while crossing the track of the defendant's railroad was struck by its engine and injured, this is prima facie negligence on the part of the defendant, and is sufficient to cast upon it the burden of proving that the injury was not caused by its fault.

"(2) You are further instructed that it is the duty of a railroad company to sound the whistle or ring the bell within at least 80 rods of a public crossing, and to keep the whistle sounding or the bell ringing until the crossing is passed, or the train stops, and a failure to do so is negligence.

"(3) You are instructed that it is the duty of a railroad company operating its trains in this state to keep a lookout for persons on its track, and, if it fail to do this and an injury occurs to persons on its track caused by such failure, then the railroad company is guilty of negligence.

"(4) Contributory negligence is a defense, and must be proved by a preponderance of the evidence by the party asserting it. And in this case you are told that while it was the duty of the defendant to keep a lookout for persons on its track, and that if it failed to do this, and the injury occurred on account of such failure, it is guilty of negligence, and you should find for the plaintiff, unless you further find that the plaintiff was guilty of contributory negligence in going on the track; but you are further told that contributory negligence is the want of such ordinary care as persons of ordinary prudence would use under the existing circumstances, and in consideration of this question you are instructed that the law only required the exercise of a degree of care commensurate with the plaintiff's age, intelligence, capability, and all the surrounding circumstances of the case."

At the request of the plaintiff, the court gave the following instruction: "(5) You are instructed that, notwithstanding you may find that the plaintiff was guilty of contributory negligence in getting on the railroad track in front of the approaching train, yet, if you find from the evidence that the engineer or fireman on the engine saw the plaintiff and his perilous condition in time to have avoided injuring him, and they failed to use all the means in their power to avoid the injury, you will find for the plaintiff."

At the request of the defendant, the court gave the following instructions:

"(7) The jury are instructed that defendant's employés in charge of the engine that struck plaintiff had the right to assume that the plaintiff was rational and that he would exercise reasonable care and caution to keep himself out of danger; and if the jury believe from the evidence that, when the employés in charge of the engine first came in sight of plaintiff, he was so far removed from the track as to be free from danger of collision, then they had a right to assume that he would remain at such safe distance, and that he would stop before going upon the track in front of the moving engine.

"(8) If the jury believe from the evidence that the defendant's cars were being hauled by a locomotive engine upon its tracks, and that plaintiff was seated in a wagon drawn by mules upon the public crossing or highway, and that both were approaching such highway where it crossed the defendant's railway under circumstances indicating that a collision between them would likely occur, if they both proceeded without stopping, the engineer in charge of the train had a right to presume that the plaintiff would stop before he drove upon the track in front of the moving engine, and the engineer had the right to proceed with his engine and train until he discovered that the plaintiff was not going to stop when it was too late to stop the train, if you find it was too late, to avoid the collision, and for that reason plaintiff was struck by the engine and injured, the defendant would not be liable, and you should find for the defendant.

Upon its own motion the court gave the following instruction to the jury: "(9) Gentlemen of the jury, under the undisputed evidence in this case, the plaintiff is guilty of contributory negligence that bars his recovery, provided the agents of the defendant in charge of its engine did not discover his perilous position in time to have avoided it, and as to whether they did discover...