Lowden v. Bell
| Decision Date | 19 November 1943 |
| Docket Number | No. 12557.,12557. |
| Citation | 138 F.2d 558 |
| Parties | LOWDEN et al. v. BELL |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thos. S. Buzbee and A. S. Buzbee, both of Little Rock, Ark., for appellants.
Paul X. Williams, of Booneville, Ark., and U. A. Gentry, of Little Rock, Ark., for appellee.
Before SANBORN and RIDDICK, Circuit Judges, and LEMLEY, District Judge.
This is an appeal from a judgment for personal injuries alleged to have been received by the appellee while crossing the tracks of the Chicago, Rock Island & Pacific Railway Company in the city of Booneville, Arkansas.
At the close of the evidence the appellants, trustees of the railway company, moved for an instructed verdict. Their motion was overruled and they excepted. The refusal of the court to grant this motion is the only error urged on appeal.
The railroad, which is double tracked, runs east and west through the city. The tracks were laid in 1899 and now separate what is locally termed "New Town" from "Old Town," the former lying north and the latter south of the tracks. Both of these areas are platted into lots and blocks; the business section is in "New Town."
The injury complained of occurred between the double tracks and south of and not a great distance from a structure on the right of way north of and facing the tracks, termed by the witnesses in the case "the eating house," a part of which is used as a passenger depot. The location of "the eating house" will be later shown.
A rough plat of that part of the town in the neighborhood of the eating house, not drawn to scale, was introduced. From this and certain evidence in connection therewith the following appears: Directly north of and parallel to the right of way is Railroad Avenue, a street sixty feet wide. Perpendicular to this avenue and connecting with it on the north side is Bennett Street, eighty feet wide. If Bennett Street were projected directly south across the right of way, the eating house would obstruct something more than the east half of it and extend some further distance to the east. Bennett Street ends, however, at the northern edge of Railroad Avenue. One block east of Bennett Street and slightly less than a block east of the eating house is Broadway, which runs parallel to Bennett Street until it meets the right of way, which it intersects. North of the right of way Broadway is one hundred feet wide and runs north and south. South of the tracks it is thirty feet wide and angles slightly to the west. It is paved both north and south of the railroad. South of the right of way and one block west of and parallel to that part of Broadway south of the railroad is Rhyne Street, unpaved and thirty feet wide. This street has its northern end at the southern edge of the right of way, directly south of the eating house. No street corresponding to Railroad Avenue on the north parallels the railroad on the south. If Rhyne Street were projected directly north it would cross the railroad, intersect Railroad Avenue, and run into the eastern side of the southern mouth of Bennett Street; and passage through Rhyne Street would be completely blocked by the eating house. The width of the eating house is not in evidence, but its southeast corner is some distance (also not shown) east of Rhyne Street.
West of the eating house is the freight depot. Until 1937, a hotel building, erected by the railroad company, was on the right of way a short distance east of the eating house. Since its removal the parcel of land lying between the eating house and Broadway has remained vacant, and there is a path leading from the intersection of Broadway and Railroad Avenue diagonally across this vacant lot to the southeast corner of the eating house, at which point there is a mailbox. A concrete walk sixteen feet or more in width extends from Broadway west along the northern edge of the tracks to a point some distance west of the eating house. This paved way is broadened in front of and on each side of the eating house and covers the entire space between it and the railroad tracks. The distance from the eating house to the tracks is not given.
Midway between the double tracks, in this immediate neighborhood, is a row of openings, each about two feet square, known as waterboxes, and having heavy removable metal covers. In these openings are connections with a water pipe to which hose is at times attached for the purpose of supplying water to railway coaches. These boxes, of which there are three or more, are from fifty to sixty feet apart. The exact distance is not shown.
About the year 1901, steps were taken by the city to open up a passageway connecting the northern end of Rhyne Street with the southern end of Bennett Street. A Mrs. Nichols, who owned a restaurant south of the railroad, claimed the fee to the land involved, and her rights were acquired by the city for that purpose. A railway fence north of the tracks was torn down by the city, and for some years pedestrians and horseback riders used this passageway in going from Rhyne to Bennett. It does not appear to have been used, except on rare occasions, by vehicles. Certain railroad buildings were located in this vicinity at the time, north of the tracks. Employees and patrons of the company ate at Mrs. Nichols' restaurant, and the railroad constructed across its tracks, in the passageway mentioned, a board walk, which remained there for some years, and which was used by these employees and patrons as well as the public generally. In 1910, the railroad erected the eating house now on the property. This blocked the passageway between Rhyne and Bennett Streets across the right of way, and thereafter pedestrians coming from the south "drifted," as expressed by one of appellee's witnesses, either east or west of the eating house, dependent upon just where they were going. After the eating house was constructed the railroad company removed the board walk across its tracks and filled in the space remaining with cinders. About four or five years prior to the trial of this case the cinders were removed and the roadbed ballasted with crushed rock, which condition now obtains. The elongated space between the double tracks in this area has been filled in by the company with gravel and cinders for its convenience. Since removal of the cinders which replaced the boardwalk above referred to, many pedestrians living in the neighborhood of Rhyne Street, in going into the business section of town, have continued to cross the railroad tracks at the mouth of Rhyne Street, both coming and going.
On the night of the injury complained of, the appellee with three other ladies living south of the tracks had attended a moving picture show on Broadway north of Railroad Avenue. In returning home they used the path which extends from the intersection of Railroad Avenue and Broadway diagonally across the vacant lot to the southeast corner of the...
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