Louisiana & Arkansas Railway Company v. Nix

• Citation: 126 S.W. 1076,94 Ark. 270
• Parties: LOUISIANA & ARKANSAS RAILWAY COMPANY v. NIX
• Decision Date: 21 March 1910
• Court: Arkansas Supreme Court

126 S.W. 1076

94 Ark. 270

LOUISIANA & ARKANSAS RAILWAY COMPANY v. NIX

Supreme Court of Arkansas

March 21, 1910

Appeal from Lafayette Circuit Court; Jacob M. Carter, Judge affirmed.

Judgment affirmed.

Henry Moore and Henry Moore, Jr., for appellant.

1. The sixth instruction requested by appellant should have been given. If the proximate cause of the injury was a ditch or unprotected culvert in the road crossing over the other railway company's road, over which appellant had no control, it is not responsible for the injury.

2. Appellee by his own testimony was guilty of contributory negligence; and if that negligence contributed in any degree to the injury, he cannot recover. 29 Cyc. 505. It was his duty to stop and look and listen for approaching trains. 63 N.W. 401; 48 La.Ann. 1; 109 La. 43. And he is not excused even if the statutory signals were not given. 56 Ark. 457; 54 Ark. 431; 62 Ark. 235; 84 Ark. 270; 85 Ark. 532.

3. The verdict is so excessive as to show that the jury were influenced by passion or prejudice.

Searcy & Parks, for appellee.

I. It is well settled that the verdict of the jury settles all disputed questions of fact. The inquiry here is not whether the verdict is sustained by the weight of the evidence, but whether the evidence is legally sufficient to sustain it. 67 Ark. 401; 70 Ark. 140; 74 Ark. 478.

2. There was no error in refusing appellant's sixth instruction requested. 79 Ark. 490; 61 Ark. 141; 88 Ark. 524. The question of contributory negligence was submitted to the jury under proper instructions, and their verdict is conclusive. 71 Ark. 428. A railway company is held to the exercise of due care for the safety of all persons while in the exercise of its franchise, whether on its own road or that of another. 53 Ark. 347; 70 Ark. 297.

OPINION

BATTLE, J.

On the 25th day of June, 1908, W. M. Nix brought an action against the Louisiana & Arkansas Railway Company in the Lafayette Circuit Court, to recover damages caused by a personal injury. The plaintiff stated his cause of action in his complaint as follows:

"That the St. Louis Southwestern Railway Company owns and maintains several spurs or switch tracks in the town of Stamps, paralleling its main line track, and that, by some traffic arrangement between defendant company and the said St. Louis Southwestern Railway Company, said tracks are used by defendant company's engines and trains in switching cars and doing other work. That a public street or thoroughfare crosses said railroad tracks on the east side of Stamps, in what is known as 'East Stamps,' and that on said 6th day of February, 1908, the plaintiff was traveling in a wagon loaded with lumber, drawn by two mules, upon the said public highway, and while in the act of crossing the said railroad tracks at said crossing defendant's engine, run by defendant, attached to several cars, was suddenly pushed forward, which frightened the plaintiff's mules, then on said crossing, and that his mules and wagon barely escaped being struck by said backing cars and engine; that the sudden starting up of said engine and the closeness of the cars and engine rapidly moving down upon them so frightened said mules that they ran away, and plaintiff was thrown from his wagon, and was seriously and permanently injured. That he sustained a compound fracture of the ankle joint; the internal maleolus being severed at its base from the tibia, and fibula being fractured about two inches from the lower extremity, without any fault on his part. That the train causing the accident consisted of a locomotive and three or four cars; that it was a switch engine, and suddenly and rapidly moved or backed said cars down upon plaintiff, and omitted to give any signal by bell or whistle of its approach to said crossing, and its presence was unknown to plaintiff at the time he drove upon said crossing, although he was careful and cautious in listening and looking for trains before going upon said track. By reason of said injuries the plaintiff has suffered intense pain, and was confined to his bed for three months, and that his injuries are permanent; that he is a farmer by occupation, and knows no other business, but that on account of his injuries he will never be able to perform his customary and necessary duties as such; and that he has necessarily expended for physicians and other services the sum of $ , and his general health is greatly impaired, and he has sustained other injuries, in all to his damage in the sum of ten thousand dollars."

The defendant answered, and denied the material allegations of the complaint, and pleaded that plaintiff's injuries were caused by his own contributory negligence.

Defendant moved that plaintiff be required to make his complaint more specific by showing in what manner he has sustained damage in the sum of $ 10,000. The court overruled the motion. We think that the complaint is sufficiently specific in showing how he sustained damage in the sum of $ 10,000.

The issues in the case were tried by a jury, and they, after hearing the evidence adduced by the parties and the instructions of the court, returned a verdict in favor of the plaintiff for $ 6,000. The evidence which sustained their verdict tended to prove the following facts: The St. Louis Southwestern Railway Company owns, operates and maintains several spurs or switch tracks in the town of Stamps, in this State, paralleling its main track. By some traffic arrangement between the defendant and that company these tracks were used by the defendant's engines and trains in switching cars and doing other work. A public street or thoroughfare crosses these tracks on the east side of Stamps in what is known as "East Stamps." There were three of these tracks, and they were known as the south switch or planer track, middle switch or passing track, and the main line track, all being straight at this point. On the 6th day of February, 1908, plaintiff, in a wagon drawn by two mules, and loaded with lumber, approached this crossing. The mules were gentle and accustomed to trains. At this time a row of box cars stood on the south or planer track, and extended west from the crossing as far as he could see, and obstructed his view and prevented him from seeing down the middle or passing track and the main line. On reaching within a few feet of the crossing plaintiff stopped his team and looked and listened for trains. Not hearing or seeing any, and no signal of approaching trains being given, and thinking the way safe, he drove upon the crossing, and just after his mules had passed over the planer track he saw three or four cars backed by defendant's switch engine, on the middle or passing track, approaching the crossing, which they crossed, at the rate of eight or ten miles an hour. The sudden proximity of the cars frightened the mules, causing plaintiff to lose control of them, and the mules to run away. ...