Missouri Pac. R. Co. v. Watt

• Decision Date: 04 July 1932
• Docket Number: No. 4-2558.,4-2558.
• Citation: 52 S.W.2d 634
• Parties: MISSOURI PAC. R. CO. v. WATT et al.
• Court: Arkansas Supreme Court

52 S.W.2d 634

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

No. 4-2558.

Supreme Court of Arkansas.

July 4, 1932.

Rehearing Denied September 26, 1932.

Appeal from Circuit Court, Hot Spring County; T. E. Toler, Judge.

Action by Ed Watt and others against the Missouri Pacific Railroad Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

R. E. Wiley, of Little Rock, and Richard M. Ryan, of Hot Springs, for appellant.

John L. McClellan, of Malvern, for appellees.

MEHAFFY, J.

The appellee Ed Watt began this action in the Hot Spring circuit court against the Missouri Pacific Railroad Company for personal injuries alleged to have been caused by the operation of one of appellant's trains at Malvern, Ark.

W. E. Kelly, a minor, by Zoa Kelly, mother and next friend, and Tom Belote, brought a suit against the appellant for injuries alleged to have been caused by the same accident alleged in Watt's case. These cases were consolidated for trial.

It was alleged in the complaints that William Kelly was driving a truck belonging to Tom Belote, and, while attempting to cross the railroad track on Main street in the city of Malvern, and, while in the exercise of due care, the agents in charge of and operating one of appellant's trains, negligently and carelessly caused the motor truck to be turned over and wrecked, and the occupants of the truck injured.

Appellant's train had stopped near the crossing, and it is alleged that, as appellees undertook to cross the track in the truck, the train was negligently, carelessly, suddenly, and without warning, started onto said crossing, thereby placing the occupants of the truck in a position of extreme peril, and, in order to avoid being struck and run over by said train, the driver of said truck was compelled to swerve it suddenly and abruptly into the curb, turning the truck over, wrecking it, and injuring appellees.

It was alleged that the employees operating the train negligently failed to keep a lookout, and, if they had kept a lookout, they would have discovered the approach of the parties in the truck in time to have avoided the injury.

It was further alleged that the appellant maintained a flagman at the crossing whose duty it is to give signals and warning of the approach of trains to persons in vehicles and pedestrians; that said flagman was present at the time of the accident and negligently failed to give any signal or warning, and by reason of such negligence, the parties in the truck, in the exercise of ordinary care, believed it safe to cross at the time.

The complaint then alleged the manner in which the parties were injured and a prayer for damages in each complaint. Kelly and Watt sought to recover damages for personal injuries, and Belote for damages to his car.

The appellant filed an answer to each complaint, denying all the material allegations of the complaints. It denied that it was guilty of any negligence, but that, if the parties were injured, the injuries were due to their own fault and carelessness in not stopping, looking, and listening for the approach of trains, and in disobeying the signal lights, and alleged that the accident was caused by the negligence of William C. Kelly, and that appellee Belote was negligent in permitting the truck to be driven by a young and inexperienced driver.

When the cases were called for trial, appellant filed motion to quash the jury panel, and for cause stated that Tom Belote, one of the appellees, was a member of the regular panel of the jury, and had been sitting on said petit jury, and served as juror in many cases determined by the jury at that term, and had been with the jury, associated with the jurors, and had deliberated with them, and, for that reason, the appellant moved the court to quash the jury panel.

Evidence was taken on this motion. The clerk of the Hot Spring circuit court was called as a witness, and testified that he had a list of the petit jurors, who served at the present term of court, and that Tom Belote had been serving as a special petit juror; had served for three days; that he had only served as juror at the present term of court in one case; that Belote was summoned as a special juror and is not on the regular panel. He was summoned late Wednesday afternoon. The court overruled appellant's motion to quash the panel, and exceptions were saved.

The evidence introduced by appellees tended to show that the parties were hauling dirt from the Malvern Brick & Tile Company, and it was necessary to cross the railroad tracks of appellant at the main street crossing. They were in a Chevrolet truck and were going north at about 4:30 p. m., and were running between 10 and 15 miles per hour; that they shut off for the crossing, and put on the brakes, and brought the truck to almost a complete stop, and saw the southbound passenger train taking water, and the engine was 12 or 15 feet from the crossing. They saw the engine standing, and saw the fireman on the back of the tender; noticed him reaching over to get the water nozzle. The bell was not ringing, but the flagman was standing about in line with the right sidewalk was on the opposite side of the track from the truck, and was hacking on the telephone post with his flagstick, and not looking in the direction of the truck. No signals were given by the operators of the train before starting up, and, when the truck was about 30 feet from the track, the occupants noticed the train beginning to move. The driver of the truck put on his brakes, and swerved to the right to keep from striking the train. The truck hit the curb and turned over.

Witness testified that no signal had been given from the train, the flagman was not out there, and nothing was done to warn the parties that the train was starting. If the driver had not swerved, the truck would either have struck the signal sign or run in front of the engine. There was nothing the driver could have done to prevent the accident.

Witnesses then described the injuries received, and physicians were introduced who testified as to the injuries. The truck was going down a pretty steep grade, and the driver was using his brakes coming down the street. The driver was looking ahead and saw the signal lights at the crossing, and knew there was danger. He knew that the crossing was dangerous, but he saw the engine standing, and saw the flagman there, and he did not give them any signal. The truck was stopped some distance from the track, but they saw the engine was not moving, saw the fireman on top of the tender, and, as no warning was given either by the trainmen or flagman, they thought it was safe to cross the track.

The evidence on the part of the appellant tended to show that the engineer stopped the engine even with the water spout, and that the front of the engine was about the edge of the sidewalk; that there was an automatic bell ringing when they came into the station. The employees in charge of the train saw the truck coming down the street, and thought nothing of it until it got within about 20 feet of the train; that the engine was at that time moving, the engineer having received a signal from the fireman. The bell was ringing, and the flagman was in the middle of the crossing, and, when the train came...