Hines v. Gunnells

• Decision Date: 24 May 1920
• Docket Number: 11
• Citation: Hines v. Gunnells, 222 S.W. 10, 144 Ark. 244 (Ark. 1920)
• Parties: HINES v. GUNNELLS
• Court: Arkansas Supreme Court

222 S.W. 10

144 Ark. 244

HINES v. GUNNELLS

No. 11

Supreme Court of Arkansas

May 24, 1920

Appeal from Polk Circuit Court; George R. Haynie, Judge; affirmed.

Judgment affirmed.

Daniel Upthegrove, J. R. Turney and Gaughan & Sifford, for appellant.

1. A verdict for defendant should have been instructed for defendant on its plea of contributory negligence. 136 Ark 249; 137 Id. 13. It is the duty of every traveller approaching a railroad crossing to look and listen for trains, and, if necessary, he must stop. 83 Ark. 62 and cases supra. It was error to give plaintiff's instruction No 5. 78 Ark. 55.

2. There was no negligence on the part of defendant. The verdict in this case does not establish negligence of the company nor determine that plaintiffs were not guilty of contributory negligence, and the evidence is entirely in favor of the defendant.

McKay & Smith, for appellees.

It would not have been proper under the evidence to instruct a verdict for defendant, as a case was made for the jury. The facts here are very similar to those in 97 Ark. 405. The questions of negligence and contributory negligence were properly submitted to the jury, and there was no error in the instructions. 122 Ark. 611; 101 Id. 315, 424; 104 Id. 38; 142 S.W. 499, 527; 148 Id. 278.

OPINION

SMITH, J.

Separate suits were filed against the appellant railroad company by appellees J. F. Gunnells and P. N. Bustion. The complaints were identical, each one claiming a separate personal injury, and, in addition, Gunnells claimed damages to his automobile on account of a collision between the auto in which they were riding and a locomotive on the line of appellant's railroad. The jury returned the following verdict: "We, the jury, find for the plaintiff J. F. Gunnells and assess his damages sustained to his automobile in the sum of $ 134; and as to the other issues we find for the defendant."

This verdict conclusively shows that the jury found nothing on account of personal injury for either plaintiff, although the testimony shows that each sustained a slight injury, for which compensation might have been allowed. Judgment was pronounced upon this verdict, and the railroad company has appealed.

The instructions requested by the railroad company would, if given, have directed a verdict in its favor, as they in effect told the jury it was the duty of the occupants of the car to have stopped the car before driving over the tracks. The court refused instructions to that effect and, over appellant's objection, gave an instruction numbered 5 reading as follows:

"You are instructed that the plaintiff, in attempting to pass over defendant's track at the crossing, is only required to do what a man of ordinary care would do under similar circumstances to avoid any probable or possible danger from a passing train, and, if need be, stop as well as look and listen. If you find from the evidence in this case that the plaintiff in approaching the track at the crossing slowed up his automobile, looked and listened and did not hear the approaching train and did not hear any whistle blowing and any bell ringing, and that he could not see the approach of the train on account of the obstruction between him and the train, and you further find that this was all that a man of ordinary care would do under similar circumstances, then it will be your duty to find that the plaintiff is not guilty of contributory negligence, notwithstanding you find that the plaintiff did not bring his automobile to a full stop."

The testimony developed the following facts: The main line of the railroad runs east and west through the town of McNeil, and a number of tracks are situated south of the main track. There is a sharp curve in the main track to the north on the west side of the town at about the point where the whistle is usually blown for the station. On the morning the accident occurred all the tracks south of the main track were blocked with cars for some distance west of the crossing. Appellees were going north, and when they reached the crossing, ...