Hawkins v. Missouri Pac. R. Co.

• Decision Date: 10 April 1950
• Docket Number: No. 4-9182,4-9182
• Citation: 217 Ark. 42,228 S.W.2d 642
• Parties: HAWKINS et al. v. MISSOURI PAC. R. CO. et al.
• Court: Arkansas Supreme Court

Page 642

228 S.W.2d 642

217 Ark. 42

HAWKINS et al. v. MISSOURI PAC. R. CO. et al.

No. 4-9182.

Supreme Court of Arkansas.

April 10, 1950.

Cecil Grooms and Howard A. Mayes, Paragould, for appellants.

Henry Donham, Little Rock, Daggett & Daggett, Marianna, for appellees.

LEFLAR, Justice.

Plaintiffs Hawkins and Hook suffered personal injuries and Hawkins' car was damaged in a collision with defendant's freight train at a highway-railroad crossing in the city of Paragould at about 2:00 a. m. on Nov. 11, 1948. At the trial of plaintiffs' action brought to recover for these injuries to person and property, the Circuit Judge directed a verdict for the defendant at the close of all the evidence. From the judgment entered upon this directed verdict the plaintiffs appeal.

Since the verdict was directed for the defendant our examination of the evidence must be in its light most favorable to the plaintiffs. Had the case been sent to the jury for a verdict, the jury might have believed the evidence favoring the plaintiffs, and it is our task to determine whether the evidence thus favorably viewed could under the law have sustained a verdict for the plaintiffs.

Plaintiff Hawkins, a South-east Missouri farmer, had made a trip in his car from his home to Coal Hill, Ark., to hire cotton-pickers. Plaintiff Hook, a neighbor, accompanied him. Hawkins had hired the needed pickers, who were to go to Missouri on a truck later, and he with Hook had at about 6:00 p. m. on Nov. 10 started back to their home in Missouri. By 2:00 a. m. of the same night, when the collision occurred, they had traveled the approximately 245 miles from Coal Hill to Paragould and were driving into that city from the west. Both were watching the road ahead.

The east-west highway in Paragould is crossed at about a 90-degree angle by defendant's railroad tracks. The tracks are raised some two or three feet above the highway, which inclines gradually up to the tracks on both the east and west. At the time plaintiffs approached from the west, at a proper speed for city driving and with their lowered lights in good condition, defendant's freight train was standing still on the tracks while trainmen were making repairs on the train, apparently at its front end. Neither Hawkins nor Hook saw the standing train till they were almost upon it. When they did see it, Hawkins applied his brakes instantly but was unable to avoid crashing squarely into the train, the front of his car being wedged beneath the boxcar which they struck. Both men were injured, and Hook was knocked unconscious. Hawkins with the aid of bystanders got the unconscious Hook out of the car. Just afterwards the train was pulled a few feet to the south, the trainmen being apparently unaware of the wreck. Plaintiffs' testimony was that the car was torn up both by the original crash and by being dragged afterwards. It was almost a total loss.

Both Hawkins and Hook testified that as they approached the crossing they could see the undimmed lights of a car facing them from the other side of the tracks, and that the undimmed lights blinded them somewhat. Also they saw a red, green and amber traffic light in operation in the middle of the street ahead of them, on the far side of the tracks. They say that they thought they had an unobstructed view down the highway, and that there were no active signals at the crossing to indicate that it was blocked by a train or anything else.

This apparent inconsistency in the plaintiffs' testimony, making it seem that they looked through a standing freight train as though it were a glass window, is explained by their testimony, and by the supporting testimony of several other witnesses. For one thing, the raised track left an open space of two feet and nine inches beneath the freight car bottoms and above the rails, directly in an automobile driver's line of vision as he would look ahead on the highway. For another thing, the part of the train immediately in front of plaintiffs as they approached the crossing was an empty box car with the doors on both sides wide open. In the light of this evidence, it is entirely possible that a jury might conclude that plaintiffs were telling the turth when they said that they were carefully watching the highway ahead and saw through or under the standing train without ever seeing the train itself until they were practically beneath it.

To justify a verdict for plaintiffs, the jury would have to find (1) that defendant was negligent in the maintenance or operation of its train at the crossing and (2) that the alleged contributory negligence of the plaintiffs was of less degree than the negligence of the defendant. This is one of the situations in which our comparative negligence law, Ark.Stats. § 73-1004, is appplicable, so that the contributory negligence of the plaintiffs will not bar their recovery unless it was equal in degree to or greater than the negligence of the defendant. Lloyd, Adm'x, v. St. Louis S. W. Ry. Co., 207 Ark. 154, 179 S.W.2d 651.

This Court has several times held that injured plaintiffs could not recover against railroad companies when automobiles were driven into the side of trains standing still on a highway crossing. Lowden, Trustee, v. Quimby, 192 Ark. 307, 90 S.W.2d 984; Gillenwater v. Baldwin, Trustee, 192 Ark. 447, 93 S.W.2d 658; Kansas City Southern Ry. Co. v. Briggs, 193 Ark. 311, 99 S.W.2d 579; Fleming, Adm'x, v. Mo. & Ark. R. Co., 198 Ark. 290, 128 S.W.2d 986; Lloyd, Adm'x, v. St. Louis S. W. Ry. Co., 207 Ark. 154, 179 S.W.2d 651. Other cases have reached the same result when the automobile was driven into the side of a moving train. Chicago, R. I. & P. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S.W.2d 175; Chipman v. Mo. Pac. R. Co., 195 Ark. 721, 114 S.W.2d 14. From these cases it is conceivable that one might leap to the conclusion that this Court has laid down a rule of law that a plaintiff can never recover when his automobile is driven onto a highway-railroad crossing into the side of a train. A reading of the cases cited makes it very clear that we have not laid down any such broad and all-embracing rule. We have not chosen to disregard the governing abstract principles of negligence and contributory negligence to the extent of saying that there never will be a crossing collision of that sort in which the railroad company or its employees are guilty of negligence, nor have we said that injured plaintiffs figuring in such collisions will always and invariably, in every case that arises, be guilty of negligence equal to or greater than that of the defendant railroad. On the contrary, in Fleming, Adm'x, v. Mo. & Ark. Ry. Co., 198 Ark. 290, 294, 128 S.W.2d 986, 988, one of the cases cited supra, we said:

'It is the settled rule that whether failure of a railroad company to station a flagman at a crossing constitutes an omission of such care as an ordinarily prudent person would use under the same or similar circumstances, is a question of fact where there are obstructions which materially hinder the view of approaching trains, provided the crossing is used frequently by the public, an numerous trains are run. Inasmuch as permanent surroundings may create a hazardous condition, the rule of care goes further and requires precautions where special dangers arise at a particular time. It is said that the obligation exists, at an abnormally dangerous crossing, to provide watchmen, gongs, lights, or similar warning devices not only for the purpose of giving notice of approaching trains, but such care is to be equally observed where the circumstances make their use by the railroad reasonably necessary to give warning of cars already on a crossing, whether standing or...