Missouri Pac. R. Co. v. Powell
| Decision Date | 10 October 1938 |
| Docket Number | No. 4-5176.,4-5176. |
| Citation | 120 S.W.2d 349 |
| Parties | MISSOURI PAC. R. CO. v. POWELL et al. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.
Two separate cases, which were consolidated for trial, by Grant Powell and others, and by Norman Neal and others, against William J. McWha and Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, to recover for injuries sustained by plaintiffs who were riding in the first-named defendant's automobile and truck when the automobile collided with the side of a boxcar and the truck collided with the rear of the automobile. The actions against the first-named defendant were dismissed, and from judgments for plaintiffs against the last-named defendant, the last-named defendant appeals.
Affirmed.
Thomas B. Pryor and W. L. Curtis, both of Fort Smith, for appellant.
Partain & Agee, of Van Buren, for appellees.
The two cases presented upon this appeal were consolidated for purposes of trial in the circuit court and the appeal brings up both cases and presents practically identical questions in each case.
The first of the said suits was instituted by Grant Powell, Lydia Winters, Ruth Titsworth and Jack Reynolds v. William J. McWha and Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company. McWha was the owner and driver of the automobile in which all the above plaintiffs were riding at the time of the accident causing this suit. The action in so far as it related to McWha was dismissed. It was alleged that about 10:00 P. M., on the 18th day of November, 1936, plaintiffs were riding in an automobile going along Main Street in the city of Van Buren, intending to cross the railroad tracks on said street, at which place there was a large number of tracks or lines of railway belonging to the defendant. They alleged that as they approached this crossing the defendant, acting through its servants, agents and employees, carelessly and negligently operated a train, consisting of an engine and several cars, over the crossing so as to cause a collision with the car in which they were riding. They allege specially that the defendant failed to have a watchman stationed at the crossing to warn plaintiffs of the approach of the train, and that said watchman, and other employees, carelessly and negligently failed to give any signal or warning to the plaintiffs, traveling upon the highway, of the approach or existence of the train, and (2) that they carelessly, negligently and unlawfully failed to ring the bell or blow the whistle or give any other signal of the approach of the train, and (3) that they carelessly, negligently and unlawfully failed to keep a constant lookout for persons and property on or near said crossing, and (4) that they carelessly, and negligently shoved, or caused to be moved, a car of the defendant suddenly onto the said crossing immediately in front of the plaintiffs, without signal or warning.
Plaintiffs pleaded acts of negligence of McWha, the driver of the car in which they were riding, but since the action has been dismissed as to him it is now unnecessary to set forth such matters. Each pleaded the particular injuries suffered and each asked for the sum of $3000 as compensation for the injuries received.
The other case alleged substantially the same acts of negligence on the part of the defendant, and his employees, but pleaded a slightly different condition or circumstance under which they were injured.
The plaintiffs in the second case were Norman Neal, Mrs. Neal, his wife, and Marie Titsworth. They belonged to the same party and were riding in a truck following the automobile driven by McWha. It was the intention of all the parties to go from Van Buren to a restaurant in Fort Smith, where they were going to eat together. The automobile driving in front ran into the moving box car, which it is alleged was suddenly shoved out over the crossing in front of the automobile, which was followed closely by the truck, in which the other plaintiffs were riding. When the automobile struck the moving box car the closely following truck ran into the automobile. The truck was driven by Bill Howard. He does not sue and was not sued by the parties riding with him in the truck or by the other plaintiffs.
It is unnecessary to make a more detailed statement of the facts more elaborately pleaded, as above stated, nor do we think it will serve any useful purpose to state with great detail all the matters appearing in evidence upon trial and presented here by this record upon appeal. A considerable portion of the evidence relates to the kind and severity of the injuries suffered by the several parties, filing and maintaining these suits, but since there is no question raised as to the respective amounts of recovery, if liability has been established, there is no reason whatever to set forth any evidence in that regard.
The principal question arising upon this appeal is that of the sufficiency of the evidence to make a case of liability. We shall set forth the contentions of the respective parties by stating facts, if not excerpts from the testimony of witnesses whose statements will illustrate the issues presented to the jury for consideration and determination. In doing this, however, we cannot think it necessary to follow closely the story as detailed by any particular witness. All the occupants of the automobile testified to substantially the same facts, that Mr. McWha had worked late that night in an effort to finish a particular job, or contract, upon which he had been employed; that they had not eaten and that they were going across the river to the La Clare Restaurant, where they intended to partake of a steak supper. They were crossing the railroad tracks at perhaps the only crossing that was open at that particular time, the other main crossing having been closed because of the fact that an overhead passageway was under construction. It was estimated that they were traveling at a speed from fifteen to twenty, or twenty-five miles per hour. They also say that they were looking out for this crossing; that no train was in sight as they approached it; that no bell was ringing and no whistle was sounding; that they were giving attention to the fact that they were approaching the crossing and that they did not see any watchman at or near the crossing, although at that time, because of the heavy traffic on this particular street, watchmen had been maintained for sometime throughout the day and night. When they had reached a point twelve or fifteen feet distant from the main track of the railroad, a refrigerator car suddenly appeared from the left and was moved upon the crossing immediately in front of them; that every effort was made to stop the car to avoid striking the boxcar, the automobile having been cut or turned sharply to the right. They struck the moving boxcar near its middle, and was moved, or carried by the moving car a very short distance, perhaps six or eight feet. The impact, however, was such as to cause the serious injuries suffered by the several plaintiffs occupying the automobile. In like manner those who occupied the truck, which followed the automobile, testified that they were sitting in the cab looking to the front, observing the crossing as they approached it; that they heard no whistle or bell; that they saw no watchman or other person upon the track; that there were no signals warning them of danger as they approached the crossing, closely following the automobile in front. The collision of the automobile with the boxcar was so sudden and unexpected that the truck ran into the automobile in front, striking with considerable force, driving the automobile partly under the side of the refrigerator car. It is not clear from the evidence whether this impact of the truck and its collision with the automobile caused any particular injuries to those in the automobile, more than they had already suffered. However, those who were riding in the truck were injured solely by reason of this collision of the truck with the automobile.
The testimony of the defendant trustee, operating the railroad, is to the effect that there were an engine, tender, and eight freight cars, or refrigerator cars in a switching movement in the yards at Van Buren. This train was being backed toward the crossing; that the bell upon the engine was an air-ringer and that it was in operation; that the whistle was sounding as they approached the crossing, but at this particular point, the engineer, who was upon the side of the train, struck by the automobile being down the track the eight car lengths was not able to see or observe the crossing or the approach of people near it. His vision was partially obstructed by a freighthouse or warehouse and some other buildings on the side of the track. The fireman, being on the other side of the engine, was not able to observe people driving upon the street approaching the crossing from the same direction the plaintiffs came. They testify, however, that there was a watchman upon this crossing in the center of the street, with a lantern, but across the railroad tracks from the side upon which the plaintiffs approached; that there was a brakeman with a lantern upon the same side as the plaintiffs and also that there was a brakeman riding or on top the head or lead car, as it approached the crossing, with a lantern with which he could signal and control the movements of this train as it approached this crossing. Their testimony is also to the effect that the plaintiffs approached at a high rate of speed; apparently, the automobile and truck were racing toward the crossing some distance, perhaps a block away. The speed of the train in the switching movement is a matter somewhat sharply in dispute. All the plaintiffs indicate by their testimony that defendant's movements were fast or speedy to some degree, as they express their...
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