Missouri Pac. R. Co. v. Ellison
| Decision Date | 15 March 1971 |
| Docket Number | No. 5--5486,5--5486 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY et al., Appellants, v. James E. ELLISON et al., Appellees. |
| Court | Arkansas Supreme Court |
W. J. Smith and B. S. Clark, Little Rock, for appellants.
Haskins & Larrison, Wright, Lindsey & Jennings, Little Rock, and Hardin & Rickard, Benton, for appellees.
This is an appeal by the Missouri Pacific Railroad Company from a judgment against it for personal injuries and property damages growing out of a train-truck collision at a railroad crossing in Benton, Arkansas.
On March 4, 1969, James E. Ellison, while in the course of his employment by East Texas Motor Freight Lines as a truckdriver, drove an East Texas truck onto the Missouri Pacific Railroad Company's track at the Neeley crossing in Benton, and it was struck by an eastbound Missouri Pacific freight train. The train stopped after the collision and Woodrow Utley, a brakeman in the employ of Missouri Pacific, injured his leg in crossing a ditch after alighting from the train.
Ellison filed suit in the Saline County Circuit Court against Missouri Pacific and its engineer, Wilson, for personal injuries. He alleged negligence in failure to keep a proper lookout and in failure to give the statutory signals. East Texas intervened for damage to its truck, tractor and trailer, and Fireman's Fund Insurance Company intervened claiming statutory subrogation rights for the amount it had paid, and would be obligated to pay, to Ellison in workmen's compensation benefits.
Missouri Pacific answered by general denied and affirmatively alleged that the plaintiff's own negligence in failure to keep a proper lookout and in proceeding onto the tracks while blinded by the sun, was the sole and proximate cause of the collision. Missouri Pacific also counterclaimed against Ellison and East Texas for damages to its locomotive and for $1,633.85, representing the amount it had paid to its brakeman, Utley, in settlement of his claim against Missouri Pacific for personal injuries under the Federal Employers' Liability Act. Missouri Pacific alleged that upon receipt of Utley's demand, it advised East Texas that Utley's claim could be settled for the amount paid and that East Texas refused to recognize its responsibility to Utley, and refused to participate in the settlement; whereupon, Missouri Pacific consummated the settlement with Utley and took a release from him in favor of itself, Ellison and East Texas.
At the trial before a jury the trial court refused to submit the counterclaim for the amount paid to Utley to the jury and dismissed the counterclaim. The cause was submitted to the jury on interrogatories and the jury approtioned the negligence 60% to Missouri Pacific and 40% to Ellison. The jury found that Ellison sustained damages in the amount of $65,000, and that East Texas had sustained property damage in the amount of $3,300. Judgment was entered for Ellison in the amount of $39,000 and for East Texas in the amount of $1,980. On appeal to this court Missouri Pacific relies on the following points for reversal:
'The defendants' motion for directed verdict should have been granted.
The court erred in refusing to give defendants' requested instruction No. 'A.'
The court erred in giving plaintiff's requested instruction No. 15.
The court erred in dismissing defendant Missouri Pacific Railroad Company's counterclaim as to Woodrow Utley.'
Under its first point, Missouri Pacific argues that a verdict should have been directed in its favor for the reason that Ellison based his entire case upon the alleged fact that he failed to see the train because he was blinded by the sun, and that he was, therefore, excused from his duty to keep an effective lookout, and since he heard no train coming he proceeded across the crossing. In support of this argument, Missouri Pacific relies heavily on Missouri Pacific R.R. Co. v. Binkley, 208 Ark. 933, 188 S.W.2d 291. There are considerable differences in the Binkley case and the case at bar. In the Binkley case Mr. Binkley was driving his automobile up a 38 foot wet 'gumbo' incline to the railroad track. The wheels were spinning on the wet 'gumbo.' Mrs. Binkley saw the train coming and advised Mr. Binkley. He also saw the train when it was between 70 and 100 yards away from him. He explained in detail how he continued in his attempt to drive the automobile from the track after he saw the train coming. Mr. Binkley did not testify as to how long it took him to reach the point of impact from the road at the foot of the slick incline, but as to his vision being affected by the sun, his testimony related to the time he left the road onto the incline and not as he drove onto the track.
'* * * you can see as far as you can see when you leave the road. But I looked down and couldn't see it because the sun was so bright. I glanced and took a look and it was bright and I didn't see a thing. Q. Did the engineer do everything possible, do you think?
A. Yes, I do. He was just like I was, he gave me time; he thought I was going to get it out of the way and when he saw I wasn't he did everything possible.'
The appellee's theory in the case of Binkley was that the collision was due to the negligence of Missouri Pacific in maintaining a slick and muddy approach to its crossing. It was the company's contention that Binkley was guilty of contributory negligence in failing to exercise the caution necessary before driving onto the railroad track. Binkley met this contention in his brief as follows:
"Appellant insists that the plaintiff should have seen the train before he reached the track, but anyone who has ever tried driving a car on a gumbo dump when it is wet and slick will understand that it takes all the attention and all the skill of a good driver to keep the car from skidding and going into the ditch, and that he has no time for looking for trains or anything else."
The primary difference, however, between Binkley and the case at bar, is set out in the Binkley opinion in the following sentence:
'Here, appellee sued for property damage only, and any contributory negligence on his part would preclude recovery under the law at the time this action arose.'
Furthermore, in the case at bar, the jury did not absolve Ellison of negligence. The jury found that he was negligent to the extent of 40% of the total negligence. The trial court properly overruled Missouri Pacific's motion for a directed verdict.
The trial court did not err in its refusal to give defendant's requested instruction No. A, which is MAI No. 1801 as modified. The trial court did give AMI No. 1801 as follows:
'There was in force in the state of Arkansas at the time of the occurrence a statute which provided: A railroad is required to place on each locomotive a bell or whistle, and these shall be rung or whistled at a distance of at least a quarter mile from where the tracks cross any public street and shall be kept ringing or whistling until the locomotive has crossed the street.
A violation of this statute although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.'
This instruction was given in the format of AMI No. 903, as evidenced by the last paragraph of the instruction. The instruction offered by Missouri Pacific would have modified AMI No. 1801 almost beyond recognition. Missouri Pacific's requested instruction No. A is as follows:
'The purpose of giving these signals is to warn the traveler of the approach of the train. But, if the train is in plain view, or if its presence is otherwise discoverable by the exercise of ordinary care, then the giving of signals ceases to be a factor in the case.
Therefore, if you have found from a preponderance of the evidence that the train in this case was in plain view or that its presence could have been otherwise discovered by the plaintiff, James Ellison, in the exercise of ordinary care, then you are instructed that the sounding of the whistle or bell on the locomotive ceases to be a factor to be considered in this case. (Then the failure to sound the whistle and bell by the trainmen should not be considered by you as evidence of negligence.)'
This instruction would have told the jury that if the presence of the train could have been discovered by Mr. Ellison in the exercise of ordinary care, that the sounding of the whistle or bell on the locomotive ceases to be a factor to be considered in the case; and that failure to sound the whistle or the bell should not be considered as evidence of negligence.
Missouri Pacific argues that the court's refusal to give the instruction took away from the jury its duty to consider the train was in plain view, and that the presence was otherwise discoverable because some witnesses testified that they heard the noise of the train from a distance as far as a quarter of a mile away. We are unable to follow Missouri Pacific's reasoning on this point. The refusal of the requested instruction did not take from the jury its duty to consider that the train was in plain view in the light of the other instructions given by the court, including AMI No. 1804; but, on the contrary, Missouri Pacific's instruction No. A, if given as tendered, would have in effect, removed from the jury's consideration as negligence, evidence of Missouri Pacific's failure to sound the whistle or bell as required by statute, even had the engineer observed the truck approaching the crossing with all obvious intentions of driving across in front of the train. It would appear that the physical fact that one using the crossing would be looking into the setting sun on a clear day should make it even more necessary to sound the bell and whistle on a locomotive approaching the crossing from the west in the afternoon.
Missouri Pacific relies on the case of Kansas City Southern Ry. Co. v. Baker, ...
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