Missouri Pac. R. Co. v. Brown, 4-2950.

• Decision Date: 03 April 1933
• Docket Number: No. 4-2950.,4-2950.
• Citation: Missouri Pac. R. Co. v. Brown, 59 S.W.2d 34, 187 Ark. 1163 (Ark. 1933)
• Parties: MISSOURI PAC. R. CO. v. BROWN.
• Court: Arkansas Supreme Court

59 S.W.2d 34

MISSOURI PAC. R. CO. v. BROWN.

No. 4-2950.

Supreme Court of Arkansas.

April 3, 1933.

Rehearing Denied May 8, 1933.

Appeal from Circuit Court, Izard County; John L. Bledsoe, Judge.

Action by Benton Brown against the Missouri Pacific Railroad Company. From judgment for plaintiff, defendant appeals.

Affirmed.

This appeal is prosecuted from a judgment for damages for personal injuries suffered by appellee at a public crossing of appellant's tracks north of Newport.

Appellee brought suit alleging he was severely and permanently injured on the night of February 2, 1932, by being struck in an automobile by appellant's passenger train at the public crossing north of Newport; it being alleged that he was driving on the public highway leading south of Newport to the ferry, known as the Hinkle and Watson ferry, and that he was crossing the tracks at a regular public crossing going south and that the automobile was struck while he was driving same by said train throwing him violently from the car and causing him to be seriously and permanently injured. The negligence alleged was that the servants of the railroad company in charge of the train failed to sound the whistle and ring the bell and to keep same sounding continuously as required by law upon approaching said crossing. That the night was damp, foggy, and cold; that the incline in the approach of the crossing was very high, and on that account the plaintiff could not see the approaching train. That he stopped at said crossing, looked and listened, and did not see nor hear an approaching train from either direction. That the train was running 45 or 50 miles per hour at the time it struck his car and did not slow up as it approached the crossing.

Appellant denied all the allegations of the complaint and pleaded contributory negligence of appellee in failing to look and listen before going on the crossing, and in failing to exercise ordinary care to ascertain whether a train was approaching and in going upon the track without using ordinary care for his own safety.

Appellee testified that he had lived in Newport for 15 years, had never lived in Stone or Izard counties, and came from Batesville to Newport. On the night of the injury he was going to Hines' ferry some time after dark after he had quit work and gone home to supper. After reaching home he ascertained that his sister-in-law was sick and his wife wanted him to go to Hinkle farm and get her father, which he did. "I got in the car and drove on down there, and I got to the foot of the bridge which constitutes a levee. I slowed the car down from high gear and looked for a train, but it did not do much good to look, you cannot see much because there is a curve coming from the south. There is not enough level there for a car to sit up on top to clear the train after you get there. I stopped the car and listened but did not hear a train. William Holland was with me in the car, and I put my car in low gear and just as I reached the track he said a train was going to hit us and he jumped. I started to jump, and I got my foot on the running board and hand on the steering wheel when the train struck the car and threw me on some boards on the track that they had left there. There are two tracks there, the south main track and the north main track. This train was on the right hand track coming into Newport. I was rendered unconscious and was picked up and Claude Dixon and some other man put me on the train and carried me into the depot and Claude called the doctor. Claude was an operator, but I don't know where he is now. I had information he was in Tennessee and had a summons issued for him. I did not see this train until it was right on me. It blowed three blast and while it was blowing the third one it hit me. I was about 75 or 100 feet from the train when I first discovered it was coming. It ran about 780 feet by the crossing before it stopped. It was No. 18, a passenger train....