Missouri Pacific Railroad Co. v. Nelson

• Decision Date: 28 March 1938
• Docket Number: 4-4977
• Citation: 115 S.W.2d 872,195 Ark. 883
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, ET AL., v. NELSON
• Court: Arkansas Supreme Court

115 S.W.2d 872

195 Ark. 883

MISSOURI PACIFIC RAILROAD COMPANY, ET AL., v. NELSON

4-4977

Supreme Court of Arkansas

March 28, 1938

Appeal from Randolph Circuit Court; John L. Bledsoe, Judge affirmed.

Judgment affirmed.

Thomas B. Pryor, H. L. Ponder, Jr., and H. L. Ponder, for appellants.

Tom W. Campbell, for appellee.

BAKER J. GRIFFIN SMITH, C. J., SMITH and MCHANEY, JJ., dissent.

OPINION

BAKER, J.

Christine Nelson, as administratrix of the estate of E. E. Nelson, brought this suit against the trustees of the Missouri Pacific Railroad Company and against Charles Ledbetter, who was the engineer upon the train at the time E. E. Nelson was killed at Moark, on April 20, 1933. This accident occurred in the western district of Clay county, Arkansas. Train No. 26, northbound, was approaching the railroad crossing at Moark and Nelson was driving on the highway in an easterly direction toward this crossing which is but a short distance south of the railway station.

In plaintiff's amended complaint it was alleged that the public road, at the point of the crossing, did not approach the railroad at a right angle, but at an angle of about 45 degrees, and that as Nelson drove toward this crossing he was traveling somewhat in a northeasterly direction so that his back was turned partially toward the south, the direction from which train No. 26 was approaching the crossing where the collision occurred.

It is also alleged that according to the regular schedule of passenger trains a passenger train, known as No. 7, was due at Moark from the north at 7:17 o'clock a. m. and that it was then 7:12; that train No. 26 was about forty-five minutes late and that travelers familiar with the schedule of these trains, in approaching the crossing, would not have expected a train from the south, but would have believed it would have gone north three-quarters of an hour earlier. It is also said that the track to the south of this crossing, for a distance of 320 feet was straight and at that point there was a slight curve of approximately five hundred feet for a distance of six miles.

There was the further allegation that Charles Ledbetter, the engineer, could have seen the truck in which Nelson was approaching the crossing from the time the engineer got within a mile of the crossing and continuously until he was within 100 feet of the crossing, and that the deceased Nelson approached the crossing believing that train No. 26 had already passed over the crossing forty-five minutes earlier and was expecting train No. 7 from the north at the time and that he had fixed his face to the north so as to discover No. 7, and for this reason did not discover the approach of train No. 26 from the south, and further that Nelson drove steadily onward, neither slackening or increasing the speed of his truck and that if defendants had been keeping the lookout as it was their duty to do, they would have observed Nelson and his truck approaching the crossing and would have observed that he was not aware of the approach of the train from the south and that they could have discovered the peril of Nelson in time to have slackened the speed of the train so as to have permitted him to cross in safety. That the defendants failed to exercise such ordinary care or in any way to slacken the speed of the train, and that the defendants did not discover the perilous position of the said Nelson in time to slacken the speed of the train and to avoid striking and killing him.

There was a further allegation that the failure on the part of the defendants to discover the peril of Nelson was due to the failure of the defendants to keep a lookout such as it was their duty to do as they approached said crossing.

These allegations, made in an amendment to the complaint, were substituted charges of negligence, upon which the appellee relied, to the exclusion of such charges as had been made in the original complaint.

On motion this case was removed to the United States district court, but upon final hearing, upon appeal to the United States circuit court of appeals, was remanded, Nelson v. Baldwin, 82 F.2d 8; whereupon, answer was filed denying all of the allegations of the complaint.

It was alleged in the answer that the track at the point where the deceased Nelson was killed was straight and clear and that there was nothing to prevent him from seeing the train coming from the south for a distance of several miles; that he drove upon the track without taking due regard for his own safety and without stopping, looking and listening for approach of train; that had he looked he would have seen the approach of the train and could have stopped his truck and prevented the accident; that he did not look either to the north or to the south, but went over the crossing looking straight ahead and was driving without due regard for his own safety Contributory negligence and assumed risk were complete defenses to the action.

It may be stated that most of this record is made up of undisputed matters which are presented and clustered about the vital or main issues which determine the question of liability. The only matters of evidence which we will attempt to present in discussion will be such as we find necessary to a determination of the vital issues arising out of the requirements or duties devolving upon the employees of the railroad company, representing its trustees, under the lookout statute and the proposition of discovered peril as that matter has arisen from the facts presented.

It may be helpful to state our conclusions upon a consideration of the whole case as we approach the more difficult problem determinative of the rights of the parties. We have examined the map or plat of this crossing upon which Nelson was killed, and in the same accident in which he was killed fireman Burnett, upon train No. 26, was also killed.

It is true the highway does not approach the railroad so as to cross at a right angle, but the highway approaches the railroad going in a northeasterly direction, if the railroad tracks are north and south so that the approach is at an angle of approximately 45 degrees. According to our conclusions it makes no particular difference about this angle or approach as that fact would not lessen in any degree the duty which bound Nelson, as he approached that railroad crossing, to look and listen for approaching trains from either or both directions. Although it is set forth in the complaint that Nelson had his face set to the north, looking for a train approaching in that direction, and it is further alleged that he surmised train No. 26 had already gone north three-quarters of an hour before, there is not a word of testimony in the entire record supporting these allegations. The windows on the cab of the truck were closed so that to whatever extent he may have been observed by anyone as he approached the crossing he must have been seen through the windshield or the closed windows, and since no one, except Nelson and the engineer and fireman upon the train, was very close to this crossing at the time of the accident, there is no substantial evidence tending to show that he looked in either, or any direction. The evidence is to the effect that he was driving ten or fifteen miles an hour; without increasing or decreasing his speed, entered upon the crossing and was struck before he had crossed over. There is no presumption arising from any proven fact that he was anticipating a train from the north or was looking out for one. It may be presumed that he did not look to the south for the reason that had he looked he would have seen the train and certainly would not have entered upon the crossing immediately in front of him, unless it was a chosen method of suicide.

It is not seriously contended, even by appellee, that Nelson was not grossly negligent. It is not admitted that he was, except as may be implied from the fact that appellee argues that the fact of his negligence can make no difference in plaintiff's right to a recovery under the evidence upon which the suit was maintained.

It is seriously argued that Ledbetter, the engineer, could have seen Nelson's truck for a great distance, perhaps a mile, as he approached the crossing, but Ledbetter testified that he did not see Nelson approaching the track; that he was upon the right-hand or east side of the train as it ran north; that Nelson was approaching from the west; that the first time he saw Nelson was at the instant of the collision when he observed the truck as it was riding the pilot of the engine. At this impact, between this truck and this fast train, there was a bursting of the gasoline tank on the truck and an explosion. Ledbetter said he was blown from his seat, in the front of the engine cab, into the tender; that the last time he had observed his fireman, Burnett, he was in his proper place, on his seat on the west side of the engine, the side approached by Nelson. Burnett's body was found a short distance north of the point of the collision. It is immaterial whether he jumped from the burning cab or was blown therefrom by the explosion.

It is argued seriously that we must presume that as Burnett was in his place he was in the due performance of his duties. He was in the exercise of due care in keeping and maintaining a constant lookout for persons or property in dangerous proximity to the railroad track. If we presume that fact, as appellant argues we should, must we not at the same time presume that Burnett saw Nelson approaching the crossing as the train proceeded north? And if we enter upon these presumptions must we not also presume that he gave a proper signal or call to Ledbetter as soon as it became apparent that Nelson was dangerously near to the track, not checking his speed,...