Missouri Pacific Railroad Co. v. Eubanks
| Decision Date | 29 April 1940 |
| Docket Number | 4-5875 |
| Citation | 139 S.W.2d 413,200 Ark. 483 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE v. EUBANKS |
| Court | Arkansas Supreme Court |
Appeal from Ouachita Circuit Court, Second Division; Gus W. Jones Judge; affirmed if remittitur is entered.
Judgment affirmed otherwise reversed and remanded.
Henry Donham and E. W. Moorhead, for appellant.
L B. Smead and Rowell, Rowell & Dickey, for appellee.
Appellee instituted this action in the Ouachita circuit court alleging that on December 11, 1938, he was driving his truck and trailer north on Tennessee street in the city of Pine Bluff, Jefferson county, Arkansas; he was alone in the truck, which was in excellent running condition, and which was loaded with rice; that as he approached 4th Avenue he came to a complete stop on the south side of the railroad crossing where approximately six tracks run in an east and west direction on 4th Avenue; that on appellee's right was a building occupied by the Martin Machinery Company; that the north side of the building was adjacent to the south track on 4th Avenue and that on said track, directly north of the building, were some boxcars; that left of the appellee was a Missouri Pacific switch engine and crew switching boxcars; that when appellee stopped his truck he looked in both directions and listened for the approach of any trains; he saw no trains approaching and heard none, and then began to proceed north across said crossing on Tennessee street; that as the cab reached the third track a Missouri Pacific passenger train, No. 116, then and there being owned by the appellants and operated by their agents and employees, proceeding in a westerly direction on 4th Avenue at a rate of speed in excess of the ordinances of the city of Pine Bluff, being then in the corporate limits of said city, and without giving any warning by ringing the bell or blowing the whistle, plowed into the cab of the truck and trailer occupied by appellee, knocked the same about 100 feet and completely demolished said truck and trailer; that there were no stationary warning signals or flag-man at the crossing. He alleged that appellant was negligent in that the train was proceeding at a rate of speed in excess of the ordinances and that the appellant's employees failed and neglected to ring the bell or blow the whistle, and that they failed to keep a proper lookout for the safety of others proceeding over said crossing; that appellee was severely shaken up by the impact; that he caused competent automobile and truck men to make an estimate of the damages, and that the lowest amount was $ 2,003.57; that appellee has suffered a total loss of his equipment, by virtue of the collision, of approximately $ 2,003.57; that in addition to the damage of his truck he suffered loss by the damage to the load of rice which he was hauling, and had to reimburse his employers in the sum of $ 10.74, and that he was forced to pay another operator to finish the delivery of his load at an additional cost to him of $ 10.80; that his battery was destroyed and he was damaged in the sum of $ 5.67. He then charges that he was damaged by reason of loss of time, that he was financially unable to replace the equipment, and asked damages in the sum of $ 2,990.78.
The appellant filed answer admitting that the Missouri Pacific Railroad Company is a corporation and that Guy A. Thompson is the duly appointed and acting trustee; and deny all other material allegations in the complaint. In addition appellant pleads contributory negligence of appellee.
The appellee testified to the facts stated in his complaint and other witnesses testified that the bell was not ringing and the whistle not sounding. The evidence tends to show that if a proper lookout had been kept, appellant's employees operating the train would have discovered appellee's presence in time to have avoided the accident and injury by the exercise of ordinary care.
The operators of the train testified that the bell was ringing but the whistle was not sounding, and testified they were keeping a lookout. The engineer, however, could not see the appellee, and the fireman testified that he saw him and paid no attention for a while because he thoug...
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... ... 37817 Supreme Court of Missouri July 6, 1943 ... ... Rehearing Denied September 7, ... under any circumstances. Mo. Pac. R. Co. v. Eubanks, ... 200 Ark. 483, 139 S.W.2d 413; Mo. Pac. R. Co. v ... Nelson, 195 ... 1000, ... 298 S.W. 347. (7) The burden of proof was on the railroad ... company to show that it kept a lookout and it failed to carry ... street. Some distance further west they cross the Missouri ... Pacific tracks. The Cotton Belt freight train was headed west ... and had stopped ... ...
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SOUTHERN LUMBER COMPANY v. Thompson
...State of Arkansas to keep a constant lookout for persons and property upon or approaching the tracks (see, Missouri Pacific Railroad Company v. Eubanks, 200 Ark. 483, 139 S.W.2d 413), and provides that contributory negligence will not bar recovery by an injured person where, if such lookout......
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...R. Co. v. Creekmore, 193 Ark. 722, 102 S.W.2d 553; Missouri Pac. R. Co. v. Taylor, 200 Ark. 1, 137 S.W.2d 747; Missouri Pac. R. Co. v. Eubanks, 200 Ark. 483, 139 S.W.2d 413. In these decisions, which also relate to railroad crossing accident cases, there are declarations or conclusions or b......
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Thompson v. Carley, 12676.
...injured party when it fails to do so. Missouri Pacific Railroad Co. v. Manion, 196 Ark. 981, 120 S.W.2d 715; Missouri Pacific Railroad Co. v. Eubanks, 200 Ark. 483, 139 S.W.2d 413; Missouri Pacific Railroad Co. v. Ross, 194 Ark. 877, 109 S.W.2d 1246; St. Louis-San Francisco Ry. Co. v. Gilst......