Missouri Pac. R. Co. v. Troy

• Decision Date: 22 May 1939
• Docket Number: No. 4-5495.,4-5495.
• Parties: MISSOURI PAC. R. CO. et al. v. TROY.
• Court: Arkansas Supreme Court

128 S.W.2d 1002

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

No. 4-5495.

Supreme Court of Arkansas.

May 22, 1939.

Rehearing Denied June 19, 1939.

Appeal from Circuit Court, Independence County; S. M. Bone, Judge.

Suit by Neil Troy against the Missouri Pacific Railroad Company, Guy A. Thompson, trustee, for damages to plaintiff's truck which was struck by a train. Verdict for plaintiff for $500, and from judgment thereon, defendants appeal.

Affirmed.

Thomas B. Pryor, of Fort Smith, and H. L. Ponder and H. L. Ponder, Jr., both of Walnut Ridge, for appellants.

J. Paul Ward, of Little Rock, and W. D. Murphy, Jr., of Batesville, for appellee.

HUMPHREYS, Justice.

Appellee brought suit against appellants in the Circuit Court of Independence County to recover damages in the sum of $650 done to his truck growing out of a collision between appellants' passenger train and his truck at Sherill crossing between the towns of Sulphur Rock and Magness in said county, through the alleged negligence of their employees in approaching the crossing without blowing the whistle or ringing the bell as required by the signal statute (section 11135, Pope's Digest), by failing to maintain the crossing in passable condition, and by permitting bushes to grow up on its right of way so as to obstruct the view of travelers on the highway to some extent in approaching the crossing.

Appellants filed an answer denying each alleged allegation of negligence and, by way of further defense, alleging the collision was due to the negligence of the driver of the truck, Melvin Casey, in carelessly and negligently driving the truck upon the track in front of the approaching train.

The cause was submitted to a jury upon the issues joined by the complaint and answer, the testimony of the witnesses introduced by the parties and the instructions of the court resulting in a verdict and consequent judgment for $500 in favor of appellee, from which is this appeal.

At the conclusion of the evidence appellants requested the court to instruct the jury to return a verdict for them on the ground that there was no substantial evidence showing that appellants failed to ring the bell or blow the whistle as the train approached the crossing, or by failing to maintain the crossing in a passable condition, or in permitting bushes to grow up on the right of way so as to obstruct to some extent the view of travelers using the highway in approaching the crossing and for the further reason that the undisputed evidence showed that appellee was guilty of contributory negligence himself which resulted in the damage to the truck.

Eight witnesses who were in a position to hear the whistle had it been blown or the bell had it been rung as it approached the crossing testified that the whistle was not blowing and the bell was not ringing as the train approached the crossing. It is true that about as many witnesses testified that the bell was ringing and the whistle blowing as the train approached the crossing but this conflict in the testimony presented an issue of fact for the jury to determine. The jury determined the issue adversely to the appellants and as there is much evidence of a substantial nature to support the verdict it is binding upon appellants.

There is also much testimony of a positive nature in the record to the effect that the crossing was extremely rough caused by exposed ties, rails sticking up from three to five inches and loose gravel that had been dug out by the wheels of trucks and automobiles. Several photographs of the crossing were introduced showing otherwise but they were taken after the crossing had been repaired by spreading gravel and chats over the crossing. There is ample evidence in the record tending to show that the crossing was in an unusually rough condition at...