Huff v. Missouri Pac. R. Co.

• Decision Date: 08 March 1926
• Docket Number: (No. 215.)
• Citation: 280 S.W. 648
• Parties: HUFF v. MISSOURI PAC. R. CO.
• Court: Arkansas Supreme Court

280 S.W. 648

HUFF v. MISSOURI PAC. R. CO.

(No. 215.)

Supreme Court of Arkansas.

March 8, 1926.

Appeal from Circuit Court, Miller County; J. H. McCollum, Judge.

Action by E. S. Huff against the Missouri Pacific Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

J. M. Carter and B. E. Carter, both of Texarkana, for appellant.

E. B. Kinsworthy and R. E. Wiley, both of Little Rock, for appellee.

McCULLOCH, C. J.

Appellant sues to recover the value of a motor truck, which was struck and demolished by one of appellee's passenger trains near Homan, a station in Miller county, north of Texarkana. Appellant was driving the truck himself, but jumped off immediately before it was struck by the engine and thus escaped personal injury. Negligence is charged against the servants of appellee in failing to keep a lookout, and in failing to sound an alarm after discovering appellant's perilous position in proximity to the railroad track. Appellee answered, denying the charge of negligence, and pleading contributory negligence on the part of appellant. On the trial of the issue, the court directed a verdict in favor of appellee.

There is an improved highway running parallel with the railroad track, about 50 feet distant, and appellant was traveling in his truck northward along that road. The road was being surfaced with gravel at the time and appellant, with other persons, was engaged in hauling gravel to use in the work of surfacing the road. The gravel was shipped to Homan by rail and was hauled out of cars standing on a spur track, which was situated across the main track from the public road. There was a crossing about 100 feet south of the station, and the trucks crossed there in order to get to the gravel cars. Appellant's truck was struck by a north-bound passenger train as he was crossing over to get to the gravel car.

Appellant testified that, when he came to the turn where the road crossed the railroad track, he looked up the track to the north, but did not look to the south; that he heard no signals by bell or whistle; that there was a slight depression between the graveled road and the railroad track; and that, as he turned up from this depression to come upon the track, he discovered the near approach of the train, and, seeing that it would hit his truck before he could stop it, he jumped and escaped injury. Other witnesses testified, in corroboration of appellant's statement, that there was no signal sounded. The track was straight for a long distance south and there was no obstruction of any kind. Appellant could have seen the train approaching if he had looked towards the south, and the engineer and fireman could have seen appellant driving his truck at any time if they had been looking. Appellee did not introduce any testimony. Our conclusion is that upon this state of facts — according to it the greatest force that is reasonably justified — the court erred in taking the case from the jury by a directed verdict.

The jury might have found that the engineer and fireman failed to keep a lookout as required by statute (Crawford & Moses' Digest, § 8568), and that, if an efficient lookout had been kept, appellant's position of peril could have been discovered in time to have prevented the injury by giving danger signals, and that no such signals were given. The jury might have found, also, that the engineer or fireman actually discovered appellant's peril in time to have given him warning by whistle so as to prevent the injury. Appellant was traveling...