Missouri Pacific Railroad Co. v. Howell

• Decision Date: 16 October 1939
• Docket Number: 4-5580
• Citation: 132 S.W.2d 176,198 Ark. 956
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE, v. HOWELL
• Court: Arkansas Supreme Court

132 S.W.2d 176

198 Ark. 956

MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE, v. HOWELL

4-5580

Supreme Court of Arkansas

October 16, 1939

Appeal from Cross Circuit Court; Neil Killough, Judge; affirmed.

Judgment affirmed.

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

Walter N. Killough, for appellee.

OPINION

MEHAFFY, J.

On October 21, 1938, the appellees, D. M. Howell and the American Insurance Company filed complaint against the appellants, Missouri Pacific Railroad Company and Guy A Thompson, trustee, alleging that on December 20, 1937, about 8:30 o'clock p. m., at a point between Cherry Valley and Vandale, Cross county, one of the railroad company's passengers trains ran into and destroyed a 1935 model Ford pick-up truck of the value of $ 42,5. It was alleged that the operators of the train failed to exercise proper and ordinary care in the operation of same, were operating it at an excessive rate of speed, failed to give warning of the approach of the train and failed to give the crossing signal as required by statute. In addition thereto, it was alleged that the grade crossing upon which the accident occurred was not properly kept and maintained, in that the rails were from four to five inches above the ground, which caused the truck to stall; that Howell was insured against damage to the truck in the amount of $ 250, which amount was paid to him by the insurance company, and that the insurance company was subrogated to the right of Howell to the extent of $ 250.

On November 17, 1938, answer was filed denying each and every allegation of the complaint.

The evidence showed that the crossing mentioned in appellees' complaint was a public road crossing used by the public generally.

Lonnie Smith testified that he had been using the crossing prior to the accident, hauling cotton over it for two years; it was a bumpy crossing, and the rails were up 3 1/2 to 4 inches from the surface between the rails; some repairs had been recently made to the crossing; he hauled his crop across this crossing to the gin; the road was used a good deal by other people with wagons, trucks and automobiles. Witness had never seen any vehicles stalled upon it.

Leonard White testified that he lived a quarter of a mile from the crossing. The train stopped about his house after the accident; the rails were sticking up above the surface of the crossing at the time of the accident, probably as much as four inches. Witness used the crossing considerably and could get over it, and it did not bother him at all. Mrs. Lonnie Smith testified that she heard the train coming before it reached the crossing; if it whistled she did not hear it; it whistled just before the crash; that was the only time she heard it; does not know how far the train went after the crash.

The appellee testified that he used this particular road probably twice or three times a month prior to the accident. On the night of the accident it was muddy and raining, and he was hunting the driest way to get home; it was cloudy and drizzling rain and fog; did not know the time the passenger train was due; the crossing is elevated some eight feet above the surface of the road; he was approaching the crossing from the west; there are some woods along the right-of-way about a quarter of a mile north of the crossing, and it would not have been possible for witness to have seen this train north of the crossing a mile or half mile away without coming up to the rails or upon the dump; the woods prevented his seeing the train half a mile or a mile away; the dump is 15 or 20 feet long on the west side of the crossing; he looked both north and south for a train as he approached, but did not see it; had not told the claim agent or anybody else that he saw the train a quarter or half mile away; he came up on the crossing and when his truck bumped over on the rail sticking up it stopped; the train was coming so he jumped out of the truck; when he got up to the track and saw the train he had just enough time to get out of the truck, that was all; he slowed up to get over the rails and killed his motor; the motor was in good condition, but it cut out crossing the rough tracks; just had time to get out of the car and run; when the truck was struck, he was not very far away, and he was still running; he did everything he could to see if a train was approaching; there was a heavy fog, and one could not see a light very far; when he first saw the train it was close to him, and he just barely had time to get out of his truck. There is a quarter of a mile of clear space between the crossing and the woods north of the crossing; it was this woods, a quarter of a mile away, that kept him from seeing the train; he looked for the train when he was at the foot of the dump about 15 feet from the crossing; the train ran in excess of a quarter of a mile while he was traveling 15 feet.

A statement was introduced that witness said he did not read. It stated that he kept his car in second gear until it stalled on the crossing; that as he went over the rail he pushed in on the clutch, slowed up a little so his truck would not bounce so much, and when he pushed the clutch in the motor died; the front wheels of his truck stopped over the west rail; about the time the truck stopped he looked and saw the headlight of what he took to be a train; it appeared to be about a fourth of a mile north of the crossing; he jumped out and saw he could not move the truck, and then ran because he was afraid the train would knock the truck against him. He testified that that part of the statement, that he tried to push the truck back, was wrong, because he did not have time. It was correct about stating that he saw the train, but it was not a fourth of a mile away. Witness identifies the picture which is introduced in evidence. If his motor had not stalled, he would have gotten over the crossing before the train came.

Earl Dexter testified as to the value of the truck, but there is no contention made about the amount of the verdict.

The appellee was recalled and testified that he had owned cars and trucks since 1934; had been driving continuously, and had never had an accident before.

J. C Ellison, a witness for appellants, testified that he had been roadmaster for the Missouri Pacific Railroad Company for 30 years and was familiar with the crossing; was riding on the train that was involved in the collision; heard the engineer blow the whistle for the crossing, and immediately after felt the emergency brake and knew something had happened; went back to the crossing after the train stopped; there was no injury to the road bed at the crossing, but the cattle guard south of the crossing was destroyed; crossing was made of composition asphalt and rock, and it was not necessary to make any repairs after the accident. Crossing was in good repair, not the best, but in good repair. He has approximately 128 crossings in the 150 miles of track under his supervision; does not see all the crossings every week, but sees them at least once a month, traveling over them in a motor car; heavy rains can remove loose gravel from the rails...