Louisiana & A. Ry. Co. v. Ratcliffe

• Decision Date: 23 November 1908
• Citation: 115 S.W. 396
• Parties: LOUISIANA & A. RY. CO. v. RATCLIFFE.
• Court: Arkansas Supreme Court

115 S.W. 396

LOUISIANA & A. RY. CO. v. RATCLIFFE.

Supreme Court of Arkansas.

November 23, 1908.

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

Action by John G. Ratcliffe against the Louisiana & Arkansas Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for personal injuries by Ratcliffe against the Louisiana & Arkansas Railway Company. Upon the trial the plaintiff gave, in substance, the following evidence: He was in a wagon with his son, a lad of 16, and two men, and they were driving on a public road which crossed the tracks of the appellant railroad company in the town of Stamps. The tracks crossing the public road were the main track and two switch tracks. When he approached the west track he found a switch engine switching backwards and forwards across the road crossing, and the nearest track contained a train of log cars on either side of the public road. His mules were used to cars, and he drove up close to the track, and waited for the switch engine to get out of the way, and remained there about 20 minutes. During this time the switch engine passed the crossing four or five times. Finally it passed, without any cars attached to it, and the switch was thrown to carry it on the track which led to the commissary of the Bodcaw Lumber Company. The operatives of the engine stopped ringing the bell, and he supposed the engine was going to proceed farther on that track. The engine was 30 or 40 yards away, and still moving away from him, when he started to cross the tracks. He had 30 or 36 feet to go to clear the tracks. When the wagon reached the main line, and the heads of his mules were near the line of the east track, between the main line and the east track, the trainmen reversed the engine, commenced ringing the bell, and started backing toward him. At that time they were 35 or 40 yards from him. They started back very rapidly, and he raised his hand and commenced hallooing at the trainmen, as did another man in the wagon. He saw one of the men operating the engine with his head out of the window, looking in his direction. There was no one on the rear of the engine which was approaching. Immediately upon seeing the engine start back at him, he commenced to whip up his mules, and tried to get over the tracks before the engine reached him, but the engine came back too rapidly, although it slacked a little before it reached him and struck the wagon, and he was thrown against it and injured. He was looking at the engine at the time he went on the track, and at all the time thereafter. The men on the engine did nothing in response to his call, unless it was to slacken the engine a little before it hit him. On cross-examination he was asked why he had stated that he believed that they had run against him on purpose, and he said: "My belief is that it was all through their neglect and carelessness. My reason for believing it is simply this: When they crossed that track and turned in the direction of the Bodcaw commissary, they went some 75 or 80 feet, or maybe more, maybe 100 feet, or something like that, up there, and they never hitched their engine to a thing in the world, and when I got upon the track, they saw me there, and it looked to me like they intentionally turned back. They come right back, and after they knocked me off, they went on that siding, and they did not hitch on to anything. Q. You mean by that that they saw you there, and the engineer, or whoever had charge of the train, tried to strike you in your wagon with the engine? A. It looked that way. I may be wrong about it." There was testimony adduced tending to corroborate Ratcliffe in all material matters, and also testimony adduced on behalf of the defendant tending to exculpate it and to show contributory negligence on the part of Ratcliffe.

The court gave instructions on all phases of the case. Only those upon which error is assigned in this court will be set out. They are the first, third, sixth, and seventh; and the court gave, with the modifications indicated by the words in italics, the fourth and fifth requested by defendant.

"(1) It was the duty of the defendant's servants to exercise ordinary care to observe travelers about to cross the railroad upon the highway, and in the running and handling of said switch engine to have exercised that degree of care and prudence which an ordinarily careful and prudent person engaged in like business would have exercised under like circumstances; and a failure to exercise such degree of care and prudence would render the defendant guilty of negligence in that respect."

"(3) The court instructs the jury that, if you should find from a preponderance of evidence that the plaintiff was in a wagon upon the streets or highways at the crossing of defendant's railway track in question, and that defendant's switch engine, which had been blocking the crossing, moved down the track and onto another track, the switch of which had been thrown for its entry thereon, and which was seen by the plaintiff, and while said engine was distant about 60 feet, and to plaintiff it appeared, from the conduct of the engine crew and other surrounding facts and circumstances, that the engine would not immediately return, and that he would have time to cross, he had a right to go upon said crossing, unless you should further believe that plaintiff in so acting upon such appearances was exposing himself to a danger that was obvious, such that a person of ordinary intelligence and prudence would not have acted upon in similar circumstances."

"(6) You are instructed that the burden of proof is upon the defendant to show, by a preponderance of the evidence in the whole case, that the plaintiff was guilty of contributory negligence, provided such negligence is not shown by plaintiff's testimony.

"(7) The jury are instructed that if the plaintiff was in the exercise of ordinary care and prudence, and the injury is attributable to the negligence of the defendant, combined with some accidental cause, to which the plaintiff has not negligently contributed, the defendant is liable."

"(4) The jury are instructed that, even if it should be proven that the defendant company occupied or blocked the road crossing in question by the switching of its engine or cars an inconvenient, or unreasonable length of time, yet as a matter of law such action on the part of defendant would not justify or excuse the plaintiff for unnecessarily going into a place of danger; and, if the jury believe from a preponderance of the testimony that the plaintiff, while the...