Missouri Pac. R. Co. v. Havens

• Decision Date: 28 April 1924
• Docket Number: (No. 339.)
• Citation: 261 S.W. 31
• Parties: MISSOURI PAC. R. CO. v. HAVENS et al.
• Court: Arkansas Supreme Court

261 S.W. 31

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

(No. 339.)

Supreme Court of Arkansas.

April 28, 1924.

Appeal from Circuit Court, Faulkner County; G. W. Clark, Judge.

Action by J. H. Havens and the Bank of Conway against the Missouri Pacific Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Pryor & Miles, of Ft. Smith, for appellant.

R. W. Robins, of Conway, for appellees.

WOOD, J.

On June 20, 1921, J. H. Havens was the owner of a Ford car on which the Bank of Conway had a mortgage. During the year 1921, Havens had a contract for carrying the mail from Conway to Bee Branch. Havens used the Ford car for carrying the mail. Mitchell Odom was his driver. On the above day Havens and Odom got in the car, which they had parked on the public square a short distance from the right of way of the Missouri Pacific Railroad Company on the east side thereof, and they started west along Oak street. In crossing the right of way they would first cross the main line track, then the passenger track, and then switch tracks. On this occasion the local freight engine, which had been switching, was standing on the passing track just south of the street crossing. As Odom drove the car up to the railroad right of way, he looked both ways for a train, but did not see any. Just as the car got on the rails and partly across the main line track, the conductor of the local freight train came from behind the engine on the passing track and motioned to Havens and Odom to stop. Odom stopped the car and in doing so killed his engine. About this time, the east-bound passenger train (designated by the witnesses as "the Dinkey") came into view around the curve from the northwest. Odom and Havens got out of the car and made some effort to push the same off of the track, but discovered that the train was going at a very rapid rate, so they left the car and escaped injury. The car was struck by the passenger train and demolished. The bell of the locomotive was not rung nor was the whistle sounded until just before the crossing was reached and the automobile struck.

This action was instituted by Havens and the Bank of Conway to recover damages against the railroad company for the destruction of the automobile. They alleged that the railroad company negligently ran its passenger train violently against the car "without having given any warning or signal for said crossing as required by law and completely wrecked said automobile." They prayed for damages in the sum of $350. The company answered denying the allegations of the complaint and pleaded contributory negligence on the part of the driver of the automobile.

The above are substantially the facts which the testimony tended to prove. The court, in an oral instruction, told the jury in effect that if the evidence showed that the plaintiffs owned an automobile which was struck at the street crossing by the locomotive of defendant, that created under the law a prima facie case of liability against the company, and unless it established by a preponderance of the evidence that it was not negligent in the operation of the train, they should find for the plaintiffs; and the court gave at the request of the plaintiffs a written instruction to the same effect. The court also gave at the request of the plaintiffs, among others, the following instructions:

"(3½) You are instructed that it is not negligence in every case for the traveler to fail to look and listen for the approach of trains. Ordinarily this is the rule, but that is not required in every case. It is for the jury to determine from the circumstances and facts in this case whether or not the conditions existing at the time of the accident were such that an ordinarily prudent person might have expected to pass along at that particular time. It is the duty of the jury to consider the incident in the light of the circumstances as they appeared to the plaintiffs at the time and then to say by your verdict whether or not the plaintiffs were guilty of imprudent or negligent conduct which caused or contributed to the collision.

"(4) The court instructs the jury that if you find from the evidence that the defendant had an employee stationed at said street crossing for the purpose of giving a warning of the approach of a train to persons crossing at said street crossing, and said employee of the defendant did not warn or stop the plaintiffs until they had gotten on the main line of the defendant at said street crossing, then the plaintiffs had a right to rely upon the action of said employee of the defendant, unless the plaintiffs actually saw the train themselves or was actually careless in not looking for the train.

"(5) You have been told that contributory negligence on the part of the plaintiffs would be a bar to plaintiffs' recovery in this case; but unless you find from the evidence that said plaintiff failed to look and listen for the approach of the train as he went upon the tracks and failed to use such reasonable care for his safety as an ordinarily prudent man would have done under the circumstances, then he was not guilty of contributory negligence, and you should not consider that as any defense to the plaintiffs' action in this case."

The court also instructed the jury at the instance of the plaintiffs that contributory negligence on the part of the plaintiffs would be a bar to the plaintiffs' recovery. But unless the plaintiff failed to look and listen for the approach of the train as he went upon the tracks and failed to use such reasonable care for his safety as an ordinarily prudent man would have done under the circumstances, then he was not guilty of contributory negligence, and the jury should not consider that as a defense to the plaintiff's action in the case.

The defendant asked the court to instruct the jury to direct a verdict in its favor, which prayer the court refused. The defendant also asked the court to instruct the jury that the burden was on the plaintiff to show that the defendant failed to ring the bell or sound the whistle. The defendant also requested the court to give an instruction on the lookout statute, which the court refused. The court, at the instance of the defendant, instructed the jury in effect that it was sufficient if either the bell was rung or the whistle sounded from a point 80 rods back of the crossing; that it was the duty of any one approaching the crossing to look and listen to ascertain if a train was approaching, and, if the situation was such that ordinary care required him to stop, that it would be his duty to stop his car before going on the track, and if the driver of the automobile in this instance failed to comply with these duties, which contributed to the injury, the verdict should be for the defendant; that it was the duty of one approaching a railroad right of way to look and listen for a train, not only in one direction, but in both directions, and that even though the defendant failed to ring the bell or blow the whistle as the train approached the crossing, yet if the driver of the automobile by looking and listening could have seen and heard the train, then the...