Koch v. Missouri Pac. R. Co., 5-5294

• Decision Date: 29 June 1970
• Docket Number: No. 5-5294,5-5294
• Citation: 248 Ark. 1251,455 S.W.2d 858
• Parties: Henry KOCH, Administrator et al., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY et al., Appellees.
• Court: Arkansas Supreme Court

Page 858

455 S.W.2d 858

248 Ark. 1251

Henry KOCH, Administrator et al., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY et al., Appellees.

No. 5-5294.

Supreme Court of Arkansas.

June 29, 1970.

Sexton, Wiggins & Christian, Ft. Smith, for appellants.

William J. Smith and Boyce R. Love and Frederick S. Ursery, Little Rock, for appellees.

BYRD, Justice.

This appeal involves a collision at a railroad crossing. The jury returned a verdict for appellees Missouri Pacific Railroad Company and Roy R. Brown, the engineer, upon which judgment was entered. For reversal appellants Henry Koch, Administrator of the Estate of Phillip E. Haralson, deceased, and Marie Koch assert only that, 'The trial court erred in the giving of an instruction which excused the railroad from the performance of its statutory duties.'

The instruction, to which only a general objection was made, provides:

'When the presence of a train approaching or occupying a crossing is readily discoverable by means other than lights, signals or flag men, then the failure to have crossing lights, crossing signals or a flag man at the crossing and the failure of the train men to ring the bell or blow the whistle are not relevant factors for your consideration.'

Our cases hold that a general objection is good only if the instruction is inherently erroneous--i.e., the instruction could not be correct under any circumstance.

The partial record here shows that decedent was driving a dump truck with a gross weight of 35 tons at a speed of approximately 30 miles per hour. The train was traveling at approximately 40 miles per hour. Decedent struck the first boxcar behind the engine. The witnesses testified that decedent's view was unobstructed, that a person who wanted to see could see the train. Admittedly some witnesses testified that the train whistle was blowing and that the other statutory signals had been given. There was also evidence to the contrary. Other evidence indicated that the brakes were faulty on the truck decedent was driving.

Our cases hold that the purpose of requiring a railroad to give signals is to warn the traveler of the approach of a train but that when the traveler otherwise has knowledge of the approach of a train, warning signals cease to be factors. Under those circumstances the failure to give the signals cannot be a proximate cause of the collision. See St. Louis & San Francisco Railroad Company v. Ferrell, 84 Ark. 270, 105 S.W. 263 (1907); Chicago, Rock Island & Pacific Railway Company v. Sullivan, 193 Ark. 491, 101 S.W.2d 175 (1937); and Missouri Pacific Railroad Company v. Dennis, 205 Ark. 28, 166 S.W.2d 886 (1942). Consequently an instruction is not inherently erroneous when it tells a jury under what circumstances the failure to give warning signals ceases to be a proximate cause of a collision at a railroad crossing.

It has been suggested, however, that the instruction here is inherently erroneous because it uses 'readily discoverable' instead of 'plainly discoverable' or some other such descriptive term. While we must admit that the instruction, above set out, is not a model instruction, it appears to us that any defect with respect to the phrase 'readily discoverable' should be reached by a specific objection. If the court's attention had been called thereto, the alleged defect could have been corrected merely by the substitution of a phrase or another adverb.

For the reasons herein stated the judgment is affirmed.

FOGLEMAN, J., dissents.

FOGLEMAN, Justice.

The basis of my disagreement with the majority lies in my feeling that the instruction of which complaint is made is inherently erroneous, so that a general objection would reach the defect I find. Consideration of the evidence in the particular case is not helpful, because I agree that an instruction is not inherently erroneous unless it would be an incorrect statement of the law under any circumstances. I think this one is, although some apparent support for it may be found in language of some of our opinions taken out of context.

In evaluating this instruction, I think that appellant makes an appropriate argument when he contends that it told the jury that the railroad was excused from giving the statutory signals if the presence of the approaching train could have been discovered by other means. This really says that, as a matter of law, one who is negligent in failing to discover the approach of a train to a crossing is at least as negligent as the train crew who failed to give the signals required by statute. I do not believe that this is the law. If it is, it certainly puts operators of railroads in a legal position not enjoyed by anyone else.

In considering this question, it is necessary that attention be given to the evolution of rules pertaining to the relationship between failure of a train crew to give the required signals and crossing collisions. The rule which the circuit court applied through the questioned instruction originated in cases where the crossing was blocked by a train at the time of the collision or the injured party otherwise knew that the train was approaching the crossing. One of the earliest cases was St. Louis & S. F. Ry. Co. v. Ferrell, 84 Ark. 270, 105 S.W. 263. ¹ In that case, the decedent knew the train was coming but stumbled and fell in the path of the train as he was running to cross the tracks. We found that the decedent's guilt of contributory negligence would defeat the action by decedent's administratrix. We also said that where there was knowledge of the coming of the train, signals ceased to be factors. We held that the case was improperly submitted to the jury. No question of instructions was involved. See also, Chicago R. I. & P. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S.W.2d 175; ² Missouri Pac. R. Co. v. Moore, 199 Ark. 1035, 138 S.W.2d 384; Missouri Pac. R. Co. v. Doyle, 203 Ark. 1111, 160 S.W.2d 856; ³ Kansas City Southern Ry. Co. v. Baker, 233 Ark. 610, 346 S.W.2d 215; Chicago, R. I. & P. R. Co. v. Gipson, 246 Ark. 296, 439 S.W.2d 931.

There followed a line of cases in which we held that there was no jury question when the train was obviously blocking the crossing at the time of the collision, because the failure to give signals could not have been the proximate cause of injuries and damages to one seeking to cross the tracks at the time. See Missouri Pac. R. Co. v. Price, 182 Ark. 801, 33 S.W.2d 366; Kansas City Southern Ry. Co. v. Briggs, 193 Ark. 311, 99 S.W.2d 579; ⁴ Chicago, R. I. & P. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S.W.2d 175;4 St. Louis Southwestern Railway Co. v. Robinson, 228 Ark. 418, 308 S.W.2d 282.

Then came Missouri Pac. R. Co. v. Brewer, 193 Ark. 754, 102 S.W.2d 538,4 in which grant of a new trial after a verdict in favor of the railroad was reversed with a 4-3 division of the court. We pointed out that the trial judge had overlooked certain phases of the case and had based his granting of the motion on his view that a preponderance of the evidence established a failure of the railroad to keep a lookout. We found this position unwarranted because the evidence on the point was undisputed, but proceeded to conclude that the jury verdict was based upon comparison of the negligence of the parties. We found the appellee's testimony that he stopped 20 to 25 feet short of the crossing where his view was unobstructed, looked and listened and then proceeded into the path of a train approaching at 40 miles per hour with headlight burning was completely refuted by the physical facts. We said that notice of the approaching train would have been apparent to any ordinary person and that the conclusion that appellee neither looked nor listened was inescapable. Such cases as Missouri Pac. R. Co. v. Sanders, 193 Ark. 1099, 103 S.W.2d 182 followed. In Sanders, we found that a verdict should have been directed for the railroad company. The reason given was that the conclusion that the negligence of appellee's intestate was the proximate cause of the fatal injuries was inescapable. We found undisputed evidence that the whistle was being blown at a point 520 feet from the crossing when the train was in plain view of one driving an automobile along the route taken by appellee's decedent and that the view of the tracks was obstructed at only one point along the path taken by the decedent, after which they were again in plain view. We said that under these circumstances the collision would not have occurred if the driver and his passenger had been taking the slightest precaution for their own safety.

Later we found questions for the jury as to negligence and contributory negligence under other circumstances. In one of them, Missouri Pac. R. Co. v. Lemons, 198 Ark. 1, 127 S.W.2d 120, Brewer was distinguished on the basis pointed out above. In that case there was a recovery by one those truck was struck while stalled on the railroad crossing. I find the following pertinent language in that opinion:

* * * On the other hand, the traveler has a right to assume that the trainmen will not be guilty of negligence and that they will perform the duties imposed upon the railroad company by law. They have a right to assume that there will be a bell rung or whistle sounded before the train reaches the crossing, unless they know that it is not giving the alarms.

In another such case, where we indicated that contributory negligence would have barred recovery for property damage, we said that one approaching a crossing where the view was obscured until he reached a point...