Missouri Pac. R. Co. v. Ward, 4-4996.

• Decision Date: 04 April 1938
• Docket Number: No. 4-4996.,4-4996.
• Citation: 115 S.W.2d 835
• Parties: MISSOURI PAC. R. CO. et al. v. WARD et al.
• Court: Arkansas Supreme Court

115 S.W.2d 835

MISSOURI PAC. R. CO. et al. v. WARD et al.

No. 4-4996.

Supreme Court of Arkansas.

April 4, 1938.

Rehearing Denied May 2, 1938.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Suit by Richard Ward, a minor, by Mrs. A. D. Ward, his mother, as next friend, and by the mother individually, against the Missouri Pacific Railroad Company and others, for injuries received when a truck which the minor was driving collided with an engine and tender at a crossing. From a judgment for the minor for $17,500, defendants appeal.

Affirmed on remittitur of $7,500, otherwise reversed and remanded for new trial.

Thomas B. Pryor and W. L. Curtis, both of Fort Smith, for appellants.

Partain & Agee, of Van Buren, and Evans & Evans, of Booneville, for appellees.

GRIFFIN SMITH, Chief Justice.

Richard Ward, a minor, by Mrs. A. D. Ward, his mother, as next friend, and Mrs. A. D. Ward, for herself, sued Guy A. Thompson, as trustee in bankruptcy for the Missouri Pacific Railroad Company, E. O. Vickory, engineer, and Henry Bleier, fireman, claiming damages to compensate injuries resulting from a crossing accident.

It was claimed that the minor had been injured to the extent of $40,000, and that Mrs. Ward was entitled to $5,000 to cover sums already expended, and to be expended, for medical care and hospitalization. The jury found "for the plaintiff" in the sum of $17,500, and on this verdict judgment for the amount indicated was entered in favor of Richard Ward.

This suit was tried in Crawford county July 13, 1937, on a complaint filed January 20 of the same year. Allegations were that March 12, 1935, Richard Ward, then 18 years of age, while driving a small Ford truck over appellants' Highland street railway crossing at Paragould, in Greene county, was struck and permanently injured; that he sustained bodily bruises and hurts causing loss of weight, night sweats, fever, debilitation, etc., and that such results were indices of tuberculosis which developed in consequence of the injuries. Gravamen of the complaint was that an engine with tender attached negligently backed over the crossing; that statutory warnings were not given; that no proper lookout was kept; and that, after discovering the perilous position of the Ward truck, appellants' agents continued to carelessly operate the engine in such manner as to strike the motor vehicle then being driven by young Ward.

The answer was a general and specific denial of negligence, coupled with the affirmative defense that the injuries complained of were caused entirely by the negligence of Richard Ward in driving his automobile against the locomotive tender. "He wholly disregarded the rules of law requiring that he look, listen, and observe for the approach of a train or car before driving upon the railroad, since he could have seen said engine and tender with the string of box cars attached had he observed said rules. That he disregarded the reflection from the headlight on the tender of the approaching engine and cars, and could have heard the sound of the whistle and the ringing of the bell; and that he wholly disregarded the presence of the two brakemen who were carrying lighted lanterns."

Evidence as to whether statutory signals, Pope's Dig. § 11135, were being given and a proper lookout kept, and evidence as to the conduct of Richard Ward in approaching the tracks, like evidence as to the conduct of trainmen at and subsequent to the time they could, through exercise of ordinary care, have discovered Ward's situation in time to have averted the accident, is in irreconcilable conflict.

Young Ward was driving a 1929 Model "A" Ford "pick-up" truck, the property of his father with whom he was then living, but who died prior to the trial of this cause. In company with two girls the youth had attended a party at the home of Cephus Higgins. Before the affair broke up he took his brother home, then returned for the girls; and at the time the accident occurred he was on his way to an address on East Poplar street, about a mile from the scene of the evening's entertainment. "I turned off of Pruit street half a block west of the tracks and went down the railroad. As I approached the crossing I couldn't see any light, nor could I hear any whistle blowing or bell ringing, and I slowed down and looked and listened. A warehouse and gin were between me and the train on the siding along there. The warehouse is about 100 feet long. There was a street light shining down there. They were backing the engine up and didn't make any signal. I slowed down to not over fifteen miles an hour. I got almost to the track, and this car [engine and tender] came out from behind the warehouse running pretty fast. I couldn't stop or go on across the tracks. They came on and hit my truck and carried it about 110 feet. The coal tender hit me as it was backing up. I was practically on the tracks before I saw it — we were not over thirty feet apart, and I couldn't do anything.

"After stopping, the engine backed up off of two brakemen that were fastened between the truck and the engine. The truck had been jammed up against the engine. It threw me out of the truck on to the end of the engine — up there above the car under the headlights. I mean the headlight of the tender. I was thrown out through a door of the automobile. I jumped down, but was bruised and scarred all over. There was a bruised place on my hip and skinned places all over my body — about my chest here where I was hurt when I hit the tender. I got off and pulled the girls out of the truck, and they took them to the hospital. I went with them.

"The doctor patched up the girls' cut places and asked me if I was hurt, and I said I didn't think so. I didn't know if I was — I was so glad to get out without getting my neck broke.

"I went home and went to bed, but couldn't sleep that night or the next. I got nervous and had to go back to bed. From then on I lost my appetite and got to coughing. I went to Dr. Majors [in Paragould] and he kept doctoring on me, but couldn't find what was wrong. In November [1935] he sent me to Dr. Riley at the Booneville Sanatorium. I was weak and couldn't work; couldn't hold out to do much, and had night sweats. I had started a crop, but couldn't finish it; was in bed part of the time and suffered pains in my chest. Dr. Riley decided that I had tuberculosis."

Edith Bacon and Margaret Price testified that, although their hearing was good and they were listening, they did not hear or see any signals or train warnings before the danger zone was reached. They were companions of Ward in the truck.

R. R. Lemons, brakeman, testified that the only signals given were "the whistle and bell as we went on the crossing."

C. B. Smith, brakeman, when asked if anything was done to give notice of the back-up movement, replied: "Not any more than when we started backing we gave the back-up signal about a block from the accident. No other alarm was given." In response to another question the witness said that the engineer gave the crossing alarm.

The fireman testified that with the equipment in use, and with the connected load, 25 feet would have been a reasonable distance within which to stop the train. Lemons, who was riding the tender, when asked whether he warned the fireman of the approaching truck, replied: "I didn't give him any warning. I didn't figure it would...