Kansas City Southern Railway Company v. Drew

• Decision Date: 29 April 1912
• Citation: 147 S.W. 50,103 Ark. 374
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. DREW
• Court: Arkansas Supreme Court

147 S.W. 50

103 Ark. 374

KANSAS CITY SOUTHERN RAILWAY COMPANY v. DREW

Supreme Court of Arkansas

April 29, 1912

Appeal from Sevier Circuit Court; Jefferson T. Cowling, Judge affirmed.

STATEMENT BY THE COURT.

Appellee Mike Drew, brought this suit against the appellant railroad company to recover damages for injuries sustained by him while going over the tracks of the appellant at a public crossing in the town of Horatio, in Sevier County, Arkansas. The train crew of appellant had brought into the town of Horatio a long train of freight cars; the train was northbound, and was so heavy that the engine could not pull it up the grades north of Horatio. Immediately upon its arrival at Horatio, the train was stopped, and a part of it was left on the main track at the depot. The cars which were intended to be set out were pulled by the engine to the north end of the yards and above the crossing at which appellee was injured. The accident occurred while these cars were being distributed on several tracks at the north end of the yard. The engine was switching the cars back and forth and placing them at the time the accident occurred. The railroad tracks at that point run north and south, and the public crossing extends across the track from east to west, leading in a northwesterly direction.

The appellee, Mike Drew, detailed the accident substantially as follows:

"I had been to Horatio for a load of freight, and was returning along the public highway in a northwesterly direction. When I arrived in about one hundred yards of the public crossing, I saw the engine which struck me, switching back and forth in the yards. I continued on my journey until I arrived in about twenty feet of the track, when I stopped. The engine was about one hundred feet north of the crossing, and was pointed north. I remained three or four minutes, and then started to cross the track."

We copy from his testimony the following question and answer:

"Q. At the time you started across the track, what happened? A. Just before I started, the engineer looked as straight at me as I look at you, and when I started I suppose he started. I could not tell anything about that, but any way he was on me before I knew it; and if he ever blowed a whistle or rung a bell, I never knew nothing about it."

Appellee has been deaf for about forty years, and did not hear the engineer ring the bell or blow the whistle when the engine started back towards the crossing. Again he says:

"I got down to the crossing, the train backed about one hundred feet as near as I could get at it, and the engine stopped and when the engineer stopped the engine I started, and when I got on the track it looked like he just came on as fast as he could, chug, chug, chug, and the first thing I knew I was covered up under the wagon bed."

Appellee then detailed the extent and severity of his injuries.

Dorman Knight testified for appellee as follows:

"I was present at the time appellee was struck. I was driving a hack, and was going from west to east, that is to say, I was going in an opposite direction to that in which appellee was going. When I got to the track, I saw that I could cross the track before the engine would reach it. The engine was then headed north. I did not hear them ring the bell or blow the whistle when they started to back the engine down toward the crossing. The hind wheels of my buggy were not at that time off the track. The hind wheels were just coming up on the outside rails. In crossing the track I went to the right and appellee to the left; I was driving faster than appellee. There was nothing to obstruct the view of appellee or those in charge of the engine as far as the crossing was concerned. The engine was moving rapidly, and, so far as my knowledge goes, no effort was made to stop it after appellee got on the track. At the time the train started I had not yet gotten on the track, but I thought that I could get across, and did do so. At the time the train started, appellee was still further away from the track."

For the appellant, the train crew testified that they were keeping a lookout, and neither the engineer nor the fireman saw the plaintiff on the track. The fireman and the engineer both testified that the bell was ringing all of the time when the engine was in motion. The engineer said that when he started to back towards the crossing he was looking ahead towards the crossing, but did not see appellee. He testified that he was looking in that direction all of the time except when he turned around to get signals from the fireman.

There was a trial before a jury, which resulted in a verdict for the defendant, and the case is here on appeal.

Judgment affirmed.

Read & McDonough, for appellant.

1. Instruction 1 is erroneous because it is not applicable to the facts in the case, this being, under the testimony, a case wherein the plaintiff was guilty of negligence, and the negligence of the company, if any, occurred after the discovery of his negligence and consequent peril. In such case bare proof that plaintiff was struck and injured by the engine does not raise a prima facie presumption of negligence on the part of the company.

2. The second instruction imposes a higher degree of care than the law requires. 94 Ark. 246, and authorities cited; 36 Ark 451; 7 N.Y. 438; 1 Mo. 97; 49 Minn. 245; 79 Ia. 389; 15 Ohio C. C. 424; 57 O. St. 650; 4 Col. 524.

3. It was error to instruct the jury as to the sounding of the whistle and the ringing of the bell. The statute, Kirby's Dig., § 6595, applies to the running of an ordinary train upon the railroad where there are road crossings, and not to the operation of an engine in the yards while engaged in switching cars.

4. The verdict is excessive. 93 Ark. 24; 93 Ark. 579; 96 Ark. 394; Id. 638; 92 Ark. 400; Id. 437.

Otis T. Wingo, for appellee.

OPINION

HART, J., (after stating the facts).

It is first urged by appellant that the court erred in giving instruction No. 1 at the request of the appellee. The instruction is as follows:

"1. You are instructed that if you find from a preponderance of the evidence that the plaintiff was struck and injured by an engine on defendant's road, that this is prima facie evidence of negligence on the part of the defendant."

The appellee was injured by the operation of defendant's train, and there was no error in giving the instruction. In the case of St. Louis, I. M. & S. Ry. Co. v. Evans, 80 Ark. 19, 96 S.W. 616, the court held:

"Where it is established that the plaintiff was injured by the operation of a train, a prima facie presumption arises that the railroad was negligent." Other cases are cited in the opinion which sustain the holding of the court, and subsequent cases might be cited to the same point, but we deem the question so well settled that it is not necessary to do so.

2. It is next contended by counsel for appellant that the court erred in giving instruction No. 2 as asked by the appellee. The instruction is as follows:

"The jury are instructed that railway companies are charged with a high degree of care for the protection and safety of travellers upon highways at and in proximity to public crossings, and it is their positive duty to keep a constant lookout for such travellers, and to use every reasonable precaution consistent with the proper operation and management of their trains to avoid injuring them; and if you find from the evidence that the employees in charge of said engine failed to exercise such care, then you are instructed that such failure to keep such lookout was negligence; and if the plaintiff was injured by reason of such negligence, and without fault on his part, then your verdict should be for the plaintiff."

At the crossing of a railroad track and a highway, both the railway company and a traveller on the highway are bound to use ordinary care; the one to avoid inflicting injury, and the other to avoid being injured, and the degree of care to be exercised by each is that which a prudent man would exercise under the circumstances of the case in endeavoring to perform his duty.

This rule is so well settled in this court that we need only cite a few of the cases bearing on the question. St. Louis & S. F. Rd. Co. v. Carr, 94 Ark. 246, 126 S.W. 850; St. Louis, I. M. & S. Ry. Co. v. Johnson, 74 Ark. 372, 86 S.W. 282; St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134, 62 S.W. 64.

Tested by this rule, the instruction was erroneous, in so far as it told the...