Missouri Pacific Railroad Co. v. Davis

• Decision Date: 20 February 1939
• Docket Number: 4-5340
• Citation: 125 S.W.2d 785,197 Ark. 830
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. DAVIS
• Court: Arkansas Supreme Court

125 S.W.2d 785

197 Ark. 830

MISSOURI PACIFIC RAILROAD COMPANY v. DAVIS

4-5340

Supreme Court of Arkansas

February 20, 1939

Appeal from Woodruff Circuit Court; Roy D. Campbell, Special Judge reversed.

Judgment reversed.

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

Mark B. Grimes and W. J. Dungan, for appellee.

SMITH J. HUMPHREYS and MEHAFFY, JJ., dissent.

OPINION

SMITH, J.

G. M. Davis and his son, Clarence Davis, a man twenty-four years of age, were engaged in the joint enterprise of shipping and selling watermelons. On August 3, 1937, they drove a truck load of melons, with Clarence at the wheel, through the town of McCrory, on their way to the city of Wynne. They were traveling on highway 64, a paved road, when they came to a crossing over the tracks of the appellant railroad company between the hours of 9 and 10 o'clock a. m. The highway makes a large S turn but crosses the track at nearly a right angle. Pictures of the crossing indicate that the track is about two feet above the land over which it runs. As the truck drove upon the crossing a fast passenger train of eight or ten coaches approached from the east, going towards McCrory. The train was running at a speed of 70 to 72 miles per hour. There was a strip of woods south of the track and about 600 feet east of the crossing which prevented the driver of the truck from seeing the train for more than 800 feet until the truck was within 100 feet of the crossing. At a point 50 feet from the crossing the truck driver had a clear view of the railroad track to the east for a distance of 2,500 feet. The track was straight. The woods which obstructed the view of the train also obstructed the view of the truck as it approached the crossing. A collision between the train and the truck occurred at the crossing, and both Davis and his son were seriously injured. They each sued for the sum of $ 3,000 and recovered judgments to compensate their injuries, from which is this appeal.

Davis and his son both testified that the speed of the truck was reduced to from 5 to 10 miles per hour as they approached the crossing. They had seen a freight train switching in McCrory as they passed through that town. They saw smoke, which proved to have been in McCrory, and they were looking in that direction to see if a train was approaching from the west, the direction of McCrory. They did not see the train until it was upon them, and the rear end of their truck was struck by the train. The front wheels of the truck and the cab had crossed the track when the collision occurred. No signal was given by blowing the whistle or ringing the bell as the train approached, until just before the collision, when two short sharp blasts of the whistle were blown. In this statement plaintiffs were corroborated by the testimony of a boy who was a passenger on the train and a man who had stopped his car about a quarter of a mile from the crossing to put water in the radiator of his car. There was no reduction in the speed of the train until after the collision. The emergency brake was applied as the collision occurred, but the train ran, according to some of the witnesses, about seven or eight times the length of the train before it stopped. The fireman gave the distance at 14 times the length of the train.

The engineer and fireman testified that after the application of the emergency brake the engine rocked with such violence that they feared the train would be derailed and wrecked, but it finally stopped, after one of the wheels of the engine had run off the rail, and that the engine almost turned over.

A Mr. T. A. Smith, who lived in Forrest City, testified that he was riding in his automobile with his 16-year old granddaughter a short distance behind the truck. Before he saw the train he heard it whistle for the crossing about a quarter of a mile from the crossing, and he also heard the bell ringing. As he approached the crossing he was about 15 feet behind the truck, and he stopped his car about 100 or 150 feet from the crossing, and he supposed the truck was also about to stop, as it slowed down to almost a snail's pace, as the witness expressed it, but the truck drove on at a speed of about one or two miles per hour over the crossing. The young lady also testified that she heard the train whistle for the crossing, and heard the bell ringing, and in other respects corroborated the testimony of her grandfather. They were both very positive that the train first whistled for the crossing, and very soon thereafter again whistled, just as the collision was about to occur.

In view of this conflict in the testimony, we must assume that the jury found that no signals for the crossing were given by the train, and that the whistle was only blown just as the collision occurred, and that the railroad company was negligent in the operation of the train.

The engineer and fireman both testified that they were in their respective places, the engineer on the right side of the cab and the fireman on the left. The engineer testified that on account of the size and length of the engine he did not see the truck until it was within about 50 feet of the track. The truck approached the crossing from the south, or the fireman's side, and the fireman testified that he saw the truck as soon as the engine passed the woods which obstructed his vision to the south. He was in a better position to discover the truck and persons approaching the crossing than was the engineer. The fireman further testified that the truck was reducing its speed as it approached the crossing, and that he thought the truck would stop and had done so. When he saw that the truck was about to cross in front of the train there was nothing he could do except warn the engineer, and this he did by jumping from his seat to that of the engineer, who immediately blew two short blasts of the whistle and applied the emergency brake.

The testimony shows that both the engineer and the fireman were thoroughly familiar with this crossing, as were also Mr. Davis and his son.

We have, therefore, a case in which it appears that the jury found that there was negligence on the part of the railroad company in the failure to give warning of the approach of the train to the crossing; but it appears to be utterly unreasonable to say that this negligence was comparable to that of the plaintiffs, or that the jury was warranted in finding that the plaintiff's negligence was of less degree than that of the railroad company.

Contributory negligence is no longer an absolute defense in actions of this character. Under our Comparative Negligence statute (§ 11153, Pope's Digest) there may be a recovery notwithstanding the negligence of the person injured, if that negligence is of less degree than that of the...