Little Rock & Ft. S. Ry. Co. v. Dinsemann

• Decision Date: 25 April 1891
• Citation: 16 S.W. 169
• Parties: LITTLE ROCK & FT. S. RY. CO. v. DINSEMANN.
• Court: Arkansas Supreme Court

Page 169

16 S.W. 169

LITTLE ROCK & FT. S. RY. CO. v. DINSEMANN.

Supreme Court of Arkansas.

April 25, 1891.

Appeal from circuit court, Conway county; J. E. CRAVENS, Judge.

The plaintiff's ward, a boy 16 years old, was struck by an engine while crossing the track. The boy testified as follows: "I am the plaintiff in this suit. Am 16 years old. I was at Mr. Zindorf's shop when he started to the depot. I came right along behind him. He ran around a box-car on the side track, and across the main track, right in front of me. I was crossing on the track when the engine struck me, and knocked me off. A box-car was standing on the side track, and extended out on the crossing. The car was standing on the crossing about that far, (about three or four feet.) Mr. Zindorf crossed before me. I was two or three feet behind him; could almost touch him. I couldn't see the train. I didn't look for it before I ran in behind the box-car, or after I got between the side track and main track. No whistle was blown, nor was any bell rung. I didn't hear either. This was 7th of February, 1889. My ankle was broken and shoulder dislocated. I was knocked senseless. I didn't know anything for a long time afterwards, when I was at home in bed. Dr. Toombs was my doctor. I have no use of my ankle. I came straight across the track. Just as they whistled they struck me, and knocked me out of my senses. I didn't know nothing. My ankle pained me a great deal, and so did my shoulder. I have suffered the most severe and excruciating pains ever since the accident. I can't rest at all. I can't sleep, and haven't had a good night's sleep since I was hurt. I have no appetite, and don't enjoy my meals. Nothing tastes good. I haven't been able to do any work since then, and am not able now. Don't think I will ever be any better, and that I will be a cripple for life. I didn't look, because the box-car in the street would have prevented me from seeing, if I had wanted to look. I heard no whistle or bell before or while I was going around the box-car that was standing in Moose street. There was no bell or whistle sounding at the time I came out and was on the track. The train came darting up, and struck me without any warning. Cross-examined: I was going to the post-office. All the time I was going from Mr. Zindorf's to the track I never looked at the train. I followed along behind Mr. Zindorf. I never looked at the train to see where it was until I got to the corner of the cotton platform. A box-car was standing over the path or sidewalk about three feet. I have good hearing and good eye-sight. I never heard the train. I heard the whistle when it blew at me. Soon as it whistled it ran against me, and knocked me out of my senses. I went right straight across the main track, after going around the box-car. I didn't stop to see if the train was there. I just went right straight across." There was a judgment for the plaintiff, and the defendant appealed.

Dodge & Johnson, for appellant. E. B. Henry and W. L. Moose, for appellee.

COCKRILL, C. J.

A traveler upon the highway is bound to exercise ordinary care and diligence at the intersection of a railway to ascertain whether a train is approaching, and to avoid collision with it. An ordinarily prudent man will use his eyes and ears to apprehend the danger, and, if the circumstances require, he will stop to enable him the better to do so. If the traveler neglects to do what an ordinarily prudent man would do under the circumstances, he is guilty of negligence. A failure to look and listen is therefore evidence of negligence on his part, and if an injury is the consequent result, and his want of precaution is...