Gray v. Missouri Pac. Ry. Co.
| Citation | 23 F.2d 190 |
| Decision Date | 03 January 1928 |
| Docket Number | No. 4887.,4887. |
| Parties | GRAY v. MISSOURI PAC. RY. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
A. C. Muir, of Memphis, Tenn. (Neuhardt & Muir, of Memphis, Tenn., on the brief), for plaintiff in error.
J. W. Canada and Edward P. Russell, both of Memphis, Tenn. (Canada, Williams & Russell, of Memphis, Tenn., on the brief), for defendant in error.
Before DENISON and MACK, Circuit Judges, and HICKENLOOPER, District Judge.
Plaintiff below complains of an instruction to find a verdict against him in his action for injuries suffered when the automobile he was driving was struck by the railroad train upon a highway crossing. Defendant claims that contributory negligence appears by the inevitable inferences from the undisputed facts. B. & O. Ry. v. Goodman, 48 S. Ct. 24, 72 L. Ed. ___, Oct. 31, 1927.
The accident happened in Arkansas, where the so-called lookout statute (section 8568, Crawford & Moses' Digest) abolishes the defense of contributory negligence if, after plaintiff's peril on the track? ought to have been known to the trainmen, they could have taken further precautions which would have prevented the injury; but an automobile driver approaching a railroad crossing is not in the apparent peril contemplated by this statute until the trainmen ought reasonably to apprehend that the driver is not going to stop while he is still in a safe position, and the trainmen may ordinarily presume that such stop will be made. Blytheville Co. v. Gessell, 158 Ark. 569, 572, 250 S. W. 881. We can find in the facts here no substantial basis for an inference that a prudent train lookout, observing plaintiff's described approach to the track, should have apprehended peril in time to have taken any effective precaution; nor can we see on this record anything which would legally justify a jury in coming to a conclusion similar to that reached in Gregory v. Mo. Pac. R. R., 168 Ark. 469, 475, 270 S. W. 621.
Arkansas also has a comparative negligence statute.1 Although, in a case where the lookout statute would be effective to eliminate the defense of contributory negligence, that elimination is not superseded by the comparative negligence statute (Gregory v. Mo. Pac. R. R. Co., supra), yet in a proper case it is a question of law whether there is any evidence to support a finding that plaintiff's negligence is of less degree than that of the railroad, and hence it may be necessary that a verdict for defendant in such a case be...
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