Hines v. Betts

• Decision Date: 20 December 1920
• Docket Number: 70
• Citation: 226 S.W. 165,146 Ark. 555
• Parties: HINES v. BETTS
• Court: Arkansas Supreme Court

226 S.W. 165

146 Ark. 555

HINES v. BETTS

No. 70

Supreme Court of Arkansas

December 20, 1920

Appeal from Greene Circuit Court, First Division; R. H. Dudley Judge; reversed.

STATEMENT OF FACTS.

Mrs Tommy Betts for herself, and as next friend of her minor children, sued Walker D. Hines, as Director General of Railroads, to recover damages for the alleged negligent killing of her husband, who was run over and killed by a passenger train of the railroad company.

The material facts are as follows: Andy M. Betts was struck and killed by a passenger train of the St. Louis & San Francisco Railroad Company as he was walking across Main Street in the city of Blytheville, Ark., about 5:45 o'clock in the afternoon on the 8th day of February, 1919. Main Street in the city of Blytheville runs east and west, and upon it are located nearly all of the stores or business houses. It is eighty feet wide between the building lines and the main line of the St. Louis & San Francisco Railroad Company runs north and south across it near the center of the business section. The right-of-way of the railroad company is 100 feet wide. The main line and one side track crosses Main Street. The railroad tracks are five feet wide and the space between them is nine feet. There is a good deal of crossing of the railroad track on Main Street. On the west side of the main track of the railroad company, and on the north side of Main Street, there is a stationary electric bell or gong for the purpose of warning the public of the approach of trains. A passenger train from St. Louis to Memphis is scheduled to arrive at the station at Blytheville at 5:45 p. m. The passenger depot is a short distance south of Main Street on the west side of the main track of the railroad. On the 8th day of February, 1919, at about 5:45 o'clock in the afternoon there was a strong wind blowing and a heavy snow falling which had covered the ground in the city of Blytheville. Andy M. Betts, a farmer, who lived in the country, was in the city of Blytheville on that afternoon and started along the sidewalk on the south side of Main Street to cross the railroad track. He was forty-five years of age at the time, and was a strong, able-bodied man. There was a string of cars on the sidetrack which obstructed his view to the north until he crossed the sidetrack. These box cars were on the sidetrack from ten to eighteen feet north of the north line of Main Street. Betts continued to walk across the main track after he crossed the sidetrack. According to those who saw the accident, he either was walking fast or was going in a jog trot. He was struck by the train after he had got nearly across the main track. The train was coming in from the north and one witness testified that Betts stopped a moment just before he stepped upon the main track.

The speed of the train as it approached the crossing on Main Street is variously fixed by the witnesses at from ten to thirty miles per hour. The witnesses also differed as to the distance that a train on the main line could have been seen by any one approaching the main track along the path traveled by Mr. Betts on the day in question. Several persons crossed the railroad track in advance of Mr. Betts, and one of them had got across the track just ahead of him. He saw the headlight of the approaching train as he crossed over. Some of the witnesses said that the train whistled some distance north of the Main Street crossing, but that they did not hear it whistle any more nor did they hear the bell ring as the train approached the crossing. Other witnesses testified that they did not hear the electric bell ring as the train approached the Main Street crossing. Most of the witnesses said that the train might have whistled again and they not have heard of it. But some of them said that they did not think it whistled but one time, and that was some distance above the Main Street crossing.

On the part of the railroad company, it was shown that the engineer and fireman were keeping a lookout, and that, as soon as the fireman saw Betts approaching the main track from his side he signaled the engineer to stop the train and the engineer at once applied the air brake in emergency and did all he could to stop the train at once. It also introduced testimony tending to show that Betts must necessarily have seen the approaching train if he had looked to the north as he attempted to cross the main track.

Other testimony will be stated or referred to in the opinion.

The jury returned a verdict in favor of the plaintiffs in the sum of $ 10,000, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

W. F. Evans and W. J. Orr, for appellant; M. P. Huddleston and S. R. Simpson, of counsel.

1. As to pain and suffering the complaint fails to state a cause of action in favor of plaintiffs. Plaintiffs' instruction No. 12 was the only instruction on the measure of damages and is clearly prejudicial in authorizing the jury to allow plaintiff's damages for pain and suffering of Mr. Betts. Kirby's Digest, § 6287; 53 Ark. 17.

2. The court erred in refusing instruction No. 9 as requested, and in giving it as modified. 125 Ark. 509.

3. Instruction 10, as requested, states the law as to contributory negligence as a defense to negligence in failure to give signals or for excessive speed. 110 Ark. 168. The court destroyed the life of this instruction by the modification. 125 Ark. 509; 110 Id. 168. See, also, 35 S.W. 216; 34 Id. 545; 93 Id. 564; 42 Id. 406; 20 Id. 161; 54 Ark. 431; 69 Id. 134; 64 Id. 364.

4. While instruction No. 6 is abstractly correct, it was error to give it in this case. 105 Ark. 299. It was error to refuse to direct a verdict for defendant. The instructions were prejudicial and erroneous.

Davis, Costen & Harrison, for appellees.

1. The contention that the complaint failed to state a cause of action for pain and suffering in favor of plaintiffs and that the court's instruction on the measure of damages is raised in this court for the first time. No specific objections were made below. 118 Ark. 1. Only a general objection was made below, and they can not specifically object here for the first time. 56 Ark. 602; 123 S.W. 797; 125 Id. 136. See, also, 133 Id. 1134; 88 Ark. 181, 204; 89 Id. 522; 93 Id. 589; 96 Id. 184; 118 Id. 337; 119 Id. 530.

2. Appellant was not prejudiced by the instruction. Under the evidence the jury would have been justified in returning a much larger verdict. 92 Ark. 432; 108 Id. 14.

3. Appellant's requested instruction No. 9 as modified was more favorable to them than they were entitled to under the facts and circumstances. 136 Ark. 246; Ib. 254; 60 Id. 409; 63 Id. 177; 64 Id. 236.

4. Instruction No. 10 was also too favorable to appellant.

5. There was no error in No. 4 given. It is not abstract. 105 Ark. 190. See, also, 94 Ark. 246, 251; 107 Id. 431, 438.

6. Instructions 3 and 5 given, correctly state the law. The jury were justified in concluding that the employees were not keeping a proper lookout, if they did not discover Betts until they were upon him.

7. The court properly refused to direct a verdict for defendant. 76 Ark. 227; 79 Id. 241. A question for a jury was made by the evidence. 90 Id. 19; 105 Id. 180; 136 Id. 246, 254.

OPINION

HART, J. (after stating the facts).

It is first insisted by counsel for the defendant that the evidence is not sufficient to support the verdict. In support of their contention, they insist that the court should have held as a matter of law that Andy Betts, who was killed, was guilty of contributory negligence in attempting to cross the railroad track at the time the train struck and killed him.

This court has expressly declared that the rule that the failure of a person, when about to cross a railroad track at a public crossing, to stop, look and listen for approaching trains constitutes contributory negligence barring recovery, is not a hard and fast rule under all circumstances. In other words, there is no absolute rule in this State that a failure on the part of the traveler to stop, look and listen at a public crossing is negligence as a matter of law and makes it obligatory upon the court under any and all circumstances to take the question of contributory negligence from the jury. C., R. I. & P. Ry. Co. v. Batsel, 100 Ark. 526, and cases cited; St. L., I. M. & S. Ry. Co. v. Roddy, 110 Ark. 161, and Smith v. Mo. Pac. Rd. Co., 138 Ark. 589, 211 S.W. 657.

In considering whether or not the court should have directed a verdict for the defendant, every fact and inference of fact favorable to the plaintiffs, which the jury might believe to be true, must be accepted as true; and every fact unfavorable to the plaintiffs which the jury might reject as untrue must be rejected. Tested by this rule, we do not think it can be said, as a matter of law, that Andy Betts was guilty of contributory negligence when he attempted to cross the railroad track on the evening he was killed. He was a farmer living out in the country from Blytheville, and the jury might have found that he was familiar with the schedule of the train and the rate of speed at which it usually approached the Main...