Missouri Pacific Railroad Co. v. Moore

• Decision Date: 19 February 1940
• Docket Number: 4-5770
• Citation: 138 S.W.2d 384,199 Ark. 1035
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. MOORE
• Court: Arkansas Supreme Court

138 S.W.2d 384

199 Ark. 1035

MISSOURI PACIFIC RAILROAD COMPANY v. MOORE

4-5770

Supreme Court of Arkansas

February 19, 1940

Appeal from St. Francis Circuit Court; E. M. Pipkin, Judge reversed.

Judgment reversed, and cause dismissed. Petition denied.

Daggett & Daggett and Thomas B. Pryor, for appellant.

R D. Smith and Marvin B. Norfleet, for appellee.

OPINION

MCHANEY, J.

Appellee brought this action against appellants to recover damages for personal injuries sustained by her at about 4:30 p. m., March 11, 1936, by reason of a collision between the car in which she was riding with her son, Dallas Moore, as driver and a train of appellants, Missouri Pacific Railroad Company and Guy A. Thompson, Trustee, on which the other appellant, W. R. Avery, was the engineer. Moore was driving his car east in the city of Marianna on Chestnut street, which is a continuation of highways Nos. 79 and 1, within said city, and was attempting to cross the railroad tracks at the crossing known locally as the "Light Plant Crossing," which is two or three blocks north of the depot in said city where the train had stopped a short time before the accident. The train was proceeding north on the branch line of the railroad leading to Memphis, Tennessee, same being the tracks farthest east at this crossing. There are three sets of tracks at this crossing, one set leading north to Wynne, Arkansas, on the west side of the crossing, and a switch or side track lying between the two east and west tracks. The collision occurred some distance north of the crossing, due to the fact that the driver of the car was unable to stop before reaching the east track on which the train was running and pulled to the left or north in an attempt to avoid a collision. The negligence laid and relied on was the failure to give the statutory signals and failure to keep a lookout. Appellants filed a general denial and entered an affirmative plea of negligence on the part of appellee in driving upon the tracks without looking or listening for the approaching train, or that the collision and injuries sued upon were solely and proximately caused by the negligence of the driver of the automobile in which she was riding, and that no negligence of appellant contributed to her injury.

Trial resulted in a verdict and judgment against appellants for $ 3,000, and this appeal followed.

At the conclusion of all the evidence, appellants requested a directed verdict, and we think the court erred in refusing said request, because there was no actionable negligence proven against them, and the undisputed proof shows the driver of the car was guilty of negligence in driving a car without brakes.

Dallas Moore, the driver, testified he saw the train when he was about 50 feet west of the crossing, and the train about 100 feet south of the crossing; that he had good brakes, was driving at the rate of 15 miles per hour, applied his brakes immediately and caused the car to skid. He and appellee say they heard no bell ringing or whistle blowing, but the question of failure to give the signals passes out of the case, because both appellee and the driver testify they saw the train 50 feet before they got to the crossing which was ample distance in which to stop the car at a speed of 15 miles per hour had it had proper brakes. The object of the statute (Pope's Dig., § 11135) requiring signals to be given is to warn travelers on the highway of the approach of the train, and when they have that knowledge without the signals being given, that fact becomes unimportant. St. Louis & S. F. Railway v. Ferrell, 84 Ark. 270, 105 S.W. 263; Mo. Pac. R. R. Co. v. Price, 182 Ark. 801, 33 S.W.2d 366; Chicago, R. I. & P. R. Co. v. Sullivan, 193 Ark. 491, 101 S.W.2d 175. We think the great preponderance of the evidence shows the signals were given practically constantly from the time the train left the depot, some two or three blocks south of the crossing in question, until the collision occurred, but we cannot say there was no substantial evidence to the contrary.

The undisputed evidence also shows that an efficient lookout was being kept by the fireman. He testified he was sitting in the fireman's seat box on the left side, saw the automobile approaching the crossing when it was about 100 feet west with the back wheel skidding on the pavement and thought the driver was not going to be able to stop; that he called to the engineer to stop and then stepped over to the engineer's side to see if the car made it across which it did not. He said the engineer stopped the train as soon as possible after notice was given him of the car; and that it takes some appreciable time to react to a perilous situation, first his mental reaction to danger, then the call to the engineer, then for the latter to react, apply the brake-valve, the air to travel through the air hose and the brakes to set to the wheels, all of which he estimated would take six seconds before the braking power would begin to have effect. This was only an estimate based on many years experience on an engine. But assuming that he was in error by three seconds, still the collision would have occurred anyway. His evidence that he...