Little Rock & Fort Smith Railway Company v. Blewitt

Decision Date16 April 1898
Citation45 S.W. 548,65 Ark. 235
PartiesLITTLE ROCK & FORT SMITH RAILWAY COMPANY v. BLEWITT
CourtArkansas Supreme Court

Appeal from Johnson Circuit Court, JEREMIAH G. WALLACE, Judge.

STATEMENT BY THE COURT.

Action by Frankie P. Blewitt, administratrix, against the Little Rock & Fort Smith Railway Company to recover damages for the killing of G. F. Blewitt. Blewitt was struck and killed by an engine of appellant moving upon a switch or "Y" at or near a public crossing in the town of Coal Hill, about 1 o'clock a. m. of a dark night. The engineer was not on the engine at the time of the accident, and it was being operated by the fireman. A watchman, named Parker, was sitting on the pilot beam of the engine. The fireman did not see Blewitt, and the first notice he had that a person was on the track was a scream by Parker. The engine was stopped, and Blewitt was found under the pilot, and lived only a short while after being taken out. Parker was absent, and did not testify at the trial. The fireman who was operating the engine testified that the headlight upon the engine was burning, and that he was keeping a lookout, and said that he did not know why he failed to see Blewitt.

There was evidence tending to show that there was no headlight on the engine at the time of the accident, and some evidence tending to show that Blewitt had been drinking, and was under the influence of intoxicating liquor at the time he was struck. There was a verdict and judgment in favor of plaintiff.

Judgment reversed and cause remanded for a new trial.

Oscar L. Miles and Dodge & Johnson, for appellant.

Appellee was guilty of contributory negligence to such an extent as bars his recovery. 36 Ark. 371; 36 Ark. 46; 48 Ark. 125; 98 U.S. 439; 46 Ark. 388; 46 Ark. 535; 61 Ark. 555; 62 Ark. 164; 61 Ark. 620; 64 Ark. 364; 36 Ark. 371; 36 Ark. 46; Ark. 333; 46 Ark. 522; 49 Ark. 263; 62 Ark. 250; ib. 235; 62 Ark. 170; Beach, Cont. Neg. § 27; 32 Iowa 467; 4 Am. & Eng. Enc. Law, p. 17, 4 note, 3; Pierce, Railroads, 323; 7 Am. & Eng R. Cas. (N. S.) 115; 61 Md. 168; Beach, Cont. Neg. (2 Ed.) 391; 46 Ark. 522; 1 Dillon, 579; 47 Ark. 502. The facts being undisputed, negligence and contributory negligence between questions of law, and the court should have directed a verdict for defendants. 61 Ark. 555. No presumption of negligence arises from the killing. 58 Ark. 472; 48 Ark. 480; 2 Thomp. Neg. 1232; 49 Ark. 264. It is negligence to fail to look and listen for approaching trains, before venturing on a railway track. 56 Ark. 427; 61 Ark. 459; 62 Ark. 157; 62 Ark 335; 62 Ark. 245; The court erred in refusing to give the instructions numbered 4, 5, 10 and 11, asked by appellant. They properly declared the law relating to accidents at public crossings, and should have been given. 54 Ark. 431; 56 Ark. 42; 62 Ark. 156. The verdict is far in excess of any reasonable expectation as to what deceased would have done for his family had he lived. 57 Ark. 384.

Geo. A Mansfield, for appellee.

The presumption is in favor of the correctness of the instructions. 57 Ark. 304; ib. 90. The testimony does not show deceased to have been guilty of contributory negligence. Defendant's engineer was negligent. 54 Ark. 214. The instructions of the court fairly cover the case, and are correct. The verdict is not excessive. 57 Ark. 377.

OPINION

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

This is an action by the administratrix of the estate of T. F. Blewitt against the railway company to recover damages for having caused his death. The circuit judge instructed the jury that if Blewitt was struck and killed by an engine on appellant's railway, this was prima facie proof of negligence on the part of said company. The company contends that this was error, but the same question was considered in the case of St. L., I. M. & S. R. Co. v. Neely (63 Ark. 636, 40 S.W. 130), recently determined by this court; and it was ruled in that case, under section 6349, Sand. & H. Dig., which makes "railroads responsible for all damages to persons or property done or caused by the running of trains in this state," that the fact that a person in a street is injured by the fall of a door from a car in a moving train is prima facie evidence of negligence on the part of the railway company. There is no difference in principle between that case and the one we have here on this point, unless it be in the fact that there were no cars attached to the engine at the time of the accident in this case; but that is a matter of no importance, for the engine and tender was a train, within the meaning of the statute above referred to. Hollinger v. Canadian Pacific R. Co., 21 Ont. 705; 26 Am. & Eng. Enc. Law, 528, note 6; Railway Company v. Taylor, 57 Ark. 136.

We therefore conclude that the charge of the circuit judge on this point was correct, for the reason that the statute upon which his ruling was based makes no distinction between injuries to persons and those to property. We have frequently held that, under this statute, a prima facie case of negligence is made against the railway company by proof of injury to livestock from a moving train or engine; and the same presumption arises from an injury to a person. St. L., I. M. & S. R. Co., v. Neely, 63 Ark. 636, 40 S.W. 130; Railway Company v. Taylor, 57 Ark. 136.

We will next notice the exception to the charge of the presiding judge in reference to the duty of Blewitt to look and listen for approaching trains before attempting to pass the crossing. In his charge to the jury on this point, the judge said that the rule requiring a person about to cross a railroad track to look and listen for approaching trains was not an inflexible rule of law, but, he said, "it is a question of fact for the jury to find from the circumstances of each particular case whether or not the party injured acted as a reasonably prudent man in undertaking to cross the track without first listening and looking for approaching locomotives." In other words, the presiding judge left it to the jury to say whether, under the facts of this case, Blewitt was required to look and listen for approaching trains before attempting to cross the track.

The law is now well settled that one approaching a railroad crossing must look and listen for approaching trains, and when, by the due exercise of care in this respect, the danger could have been discovered and avoided, no recovery can be had. Railway Company v. Cullen, 54 Ark. 431, 16 S.W. 169; Railway Co. v Tippett, 101 Ark. 376; ...

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