Missouri Pac. R. Co. v. Hancock

• Decision Date: 17 January 1938
• Docket Number: No. 4-4882.,4-4882.
• Citation: 113 S.W.2d 489
• Court: Arkansas Supreme Court
• Parties: MISSOURI PAC. R. CO. et al. v. HANCOCK et al.

Page 489

113 S.W.2d 489

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

No. 4-4882.

Supreme Court of Arkansas.

January 17, 1938.

Rehearing Denied March 7, 1938.

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

Suits by Ed Hancock and others against the Missouri Pacific Railroad Company and others to recover for personal injuries sustained when an automobile was driven into a coal car. Judgment for plaintiffs, and defendants appeal.

Reversed and rendered.

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

Partain & Agee, of Van Buren, for appellees.

GRIFFIN SMITH, Chief Justice.

The only question presented by this appeal for consideration of the court is whether there was any substantial evidence to support a jury's verdicts, the effect of which was to find that appellant's negligence was greater than the contributory negligence of appellees, if any.

The accident which gave rise to the suits occurred in Paris on July 14, 1936, about 9:30 in the evening. The appellees were in a Model "A" Ford car. All were occupying the front seat. Bryant was driving, Hancock was in the middle, and Winkler was on the right. According to testimony on behalf of appellees, they were driving over an area traversed by several tracks, and ran into a coal car, injuring all of them.

Testimony of the appellees was the only evidence offered in support of their complaint. Hancock, first to take the witness stand, had lived in Paris six years. He thought there were five or six tracks across the highway where the accident occurred. Had lived down on the "other side" of the tracks for two years. A great deal of switching is done over the tracks. The company maintains scales used in weighing cars, "and they had just started switching, and they would just push the cars down enough from the scales across the street to make up a train, and then the `extra' would come in and pull the train out." It had been customary for the company to keep a flagman at the crossing, and witness had been stopped by such flagmen many times. "On the night in question we were driving on the crossing and we didn't see any light, so we kept driving and got nearly up to the third track, and I looked and saw the coal car blocking the road all at once, and I grabbed the emergency brake and he [Bryant, the driver] cut to the right to miss the car as it was coming on the crossing." The automobile ran into the car at a point "a pretty good piece toward the back end."

"Q. Did you look for a locomotive? A. Yes sir, and you will hear one if they are switching.

"Q. Did you see any kind of a signal? A. No sir.

"Q. Was anyone giving you any kind of a signal as you approached that track?"

An objection by counsel for appellant that the question was leading was sustained.

The witness further testified that there was a car on the second track "before you got to this one; cars on both the right and left."

"Q. You have already stated that you were given no warning as you approached this crossing until this car shot out in front of you? A. No sir."

The witness then testified that he was rendered unconscious and was carried to the hospital. "It injured my left eye, and these scars here on my head; and my back was wrenched and has hurt ever since, and I can't do any lifting without it bothering me. I lost about a month and a half from my work."

On cross-examination Hancock testified that he was watching the road all the time.

"Q. Didn't you see that car out there? A. Not until we hit it.

"Q. After you ran into it, didn't you observe the cars [a string of cars] out there? A. I was knocked out.

"Q. You don't know if the car was hooked on to other cars? A. No sir. The first thing that I saw was the car just loomed up in front of us."

Further on in his testimony Hancock, asked if there were other cars hooked on to the one they ran into, said that there could not have been — "I saw this one as it came out in front of us."

"Q. Who first discovered the car? A. We all saw it about the same time.

"Q. You were so close to the car that you couldn't stop? A. Yes sir, and he [Bryant] turned the wheel around to try to get around the end of the car."

Witness was positive there were no other cars connected with the one they hit.

"Q. Have you ever been convicted for anything? A. Yes sir, liquor."

Witness was on probation at the time the accident occurred.

After Baxter Bryant had testified to having sustained injuries as the result of "a collision with a coal car," and before he had stated that the coal car was in motion, he was asked: "Was there any light there to warn you of the approach of this car?" His answer was, "No."

"Q. Did you see or hear anything to give you any warning of the approach of this train? A. No sir.

"Q. Now then, tell the jury the first warning that you had that there was a car movement of any kind. A. This street was open and ran on the crossing. There were several tracks there, and there were cars on both sides of the street. I was driving down through these cars on the crossing, and all at once a coal car came right in front of me, and I didn't know where it came from, and I couldn't avoid hitting it. I turned to the right to try to miss it, but I hit the back end of the car. There was only one car in that movement. No other cars were attached to it, and already across the pavement, but there were some already over there, and about the time I hit it, it hit another car. I don't know what they were doing with the cars. I was knocked over the steering wheel. I was bruised in my chest and on the back of my neck. Ever since then I have been sore, up until awhile back, and if I get in a certain `creen' it hurts me. The automobile was practically ruined. That was the first time I had ever crossed that crossing, and there was no light there that night."

On cross-examination, the witness testified: "I was traveling about 20 miles an hour."

"Q. Did you keep up that pace until you discovered that car in front of you? A. I guess I did. I was traveling down the street and everything was clear, and after I saw the car — then I hit the car. When I hit the car I was going about ten miles an hour. I was within about 25 feet of the car when I first saw it, I believe. I hit about the wheels [near the west, or back end] of the car.

"Q. Did you pay any attention to the street lights there? A. They are all up and down the street, and were burning.

"Q. You say you didn't see any car to the left of the car that you hit? A. No sir.

"Q. You didn't see any car on the right connected with that car? A. To the best of my memory, it was impossible to see both ends of the train there.

"Q. Didn't you make any observations after the accident to see how the accident happened? A. I didn't have much time to make any observations. I was trying to miss the car.

"Q. I am talking about after you hit it? A. I got out of that car as fast as I could. I thought it was a train and I jumped out."

The witness testified that the coal car moved "four or five feet" after he hit it. He also denied seeing or driving around another automobile just before hitting the coal car.

Appellee Winkler testified as follows: That he lived in Paris; is a farmer, but was working on relief in September, 1936. In approaching the crossing, he did not see any watchman "or a light or anything to give me warning that there was a car movement." Did not see a locomotive; did not hear the sound of a locomotive, and "I never saw any light, although I was looking for one. The [automobile] car was driving up on the crossing, and when we got pretty close to this track, the first thing that I knew was when Ed [Hancock] reached for the brake. Bryant was trying to turn the car out of the way. I saw the coal car when they did. It came from the west going east, and was the first car. This car came out and came across the road in front of us, on the third track. My head was cut, and they took nine stitches in it — it knocked me out; I didn't know a thing until after I got to the hospital. I was laid up five weeks. I nearly bled to death, but it didn't bleed any after they sewed me up."

On cross-examination the witness testified that the first thing that attracted his attention "about anything being on the crossing" was when Hancock got hold of the emergency brake.

"Q. You were right on the car then? A. Yes sir."

Witnesses called by appellant were: George Sisemore, of Paris, a photographer; Jesse Barnett, of Paris, who knew Hancock, but was not acquainted with either Bryant or Winkler, and was not connected with the railroad; Mrs. Jesse Barnett; L. K. Carpenter, of Paris, not connected with the railroad; E. Freeman, of Paris, not connected with the railroad; Harry Adkins, of Van Buren, car inspector for appellant; W. F. Tolsom, of Little Rock, Missouri Pacific employee; W. E. Pearsall, of North Little Rock, Missouri Pacific employee; D. T. Holle, of Van Buren, Missouri Pacific conductor; Geo. Vandergriff, of Van Buren, fireman for appellant company; W. C. Stevenson, of Paris, engineer for Missouri Pacific; and Geo. Beattie, of Fort Smith, claim agent for the Missouri Pacific — each of whom contradicted the appellees.

Jesse Barnett, with his wife, had started across the series of tracks in question, and was stopped by a flagman because "a train was backing down there." Had been waiting a short time when the car in which appellees traveled came up. The flagman stopped witness after three or four cars had passed over. While witness was waiting after having been flagged, appellees drove up, and "in order to get around me they pulled around me on my right — that would be on the west side of the pavement." One flagman with a lantern was at the crossing; another caught the side of a car and moved on out with the train. Headlights on witness' car were shining during the time he waited for the train to clear the track.

Mrs. Barnett testified that she and her husband were parked between...