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

• Decision Date: 07 March 1896
• Citation: 34 S.W. 545
• Parties: MARTIN v. LITTLE ROCK & FT. S. RY. CO. et al.
• Court: Arkansas Supreme Court

34 S.W. 545

MARTIN v. LITTLE ROCK & FT. S. RY. CO. et al.

Supreme Court of Arkansas.

March 7, 1896.

Appeal from circuit court, Johnson county; Jeremiah G. Wallace, Judge.

Action by Robert S. Martin against the Little Rock & Ft. Smith Railway Company for personal injuries From a judgment for defendant, plaintiff appeals. Affirmed.

Action by Robert S. Martin against the railway company for injuries received by him while about to cross its track. He alleged that the injuries were occasioned by the negligence of the employés in charge of train of defendant company. The railway company denied negligence, and alleged that the injury of plaintiff was caused by his own carelessness. The plaintiff, to sustain his case, testified as follows: "About 9 o'clock a. m., March 3, 1894, I wanted to cross the railroad track of defendant at a crossing thereof in the town of Coal Hill, Johnson county. There was a freight train standing on the switch, heading west, and extending across said crossing from a considerable distance east of same; and my recollection is that the second car from the engine was right on the crossing. The engine was blowing off steam and making a very great noise. I went around the head of the engine, stopping a moment to speak to Cull Johnson, the fireman, and then passed on down between the main track and the switch track toward the crossing, when I was struck by a freight train coming in from the west, and seriously injured. * * * I was crossing from south to north. The train had been standing there for an hour or more, obstructing passage at the crossing. I am a little dull of hearing in one ear, but hear well out of the other. I heard no whistle or bell. Don't think I could have heard the bell because of the noise of the escaping steam. I knew nothing of its approach until it struck me. The road there runs east and west. I had gone two-thirds of the length of the engine when I was hit. I did not look up the track, because I was watching the engine which I had just passed. I was out of its way when I was struck. I was going east, and could see down the track that way, but did not look back. That was a public crossing. I could have heard the coming train but for the escaping steam. I was expecting the standing train to start, and for that reason was watching it. I could have seen the train that struck me if I had looked up the track in the direction it was coming. I did not stop to listen, and did not look toward the west, from which direction the train was coming that struck me. I don't think I had stepped onto the track, but was just about to step on it. It was some distance from the place where I was struck to the crossing." This was all the testimony of plaintiff except that portion describing his injuries. Other witnesses testified that plaintiff was in the act of stepping upon the railway track when hit by the engine. The train was approaching in full view, and, had plaintiff looked to the west, he could have seen it for at least 200 yards before it reached him. Under these facts the court directed a verdict for defendant, and plaintiff appealed.

A. S. McKennon, for appellant. Dodge & Johnson, for appellee.

RIDDICK, J. (after stating the facts).

We agree with counsel for...