Missouri Pacific Railroad Co. v. Sanders

• Decision Date: 03 May 1937
• Docket Number: 4-4632
• Citation: 106 S.W.2d 182,193 Ark. 1099
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. SANDERS
• Court: Arkansas Supreme Court

106 S.W.2d 182

193 Ark. 1099

MISSOURI PACIFIC RAILROAD COMPANY v. SANDERS

4-4632

Supreme Court of Arkansas

May 3, 1937

Appeal from White Circuit Court; W. D. Davenport, Judge; reversed.

Judgment reversed and cause dismissed.

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

John E Miller, C. E. Yingling and Tom W. Campbell, for appellees.

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

OPINION

BUTLER, J.

Two separate actions brought by John Q. Adams, administrator, and Mrs. Katherine F. Sanders, administratrix, for damages for the deaths of their respective intestates were consolidated for trial in the court below, where there were verdicts and judgments in favor of the two appellees, and, as consolidated, presented here on appeal.

The casualty out of which this lawsuit arose occurred about 10:30 a. m., on October 23, 1931, at a railroad crossing in the village of Higginson, Arkansas. E. H. McDaniel was driving a Buick sedan and Alfred M. Sanders was riding on the seat beside him. They were traveling south on highway 67E which runs parallel with the line of appellant railroad company. As they turned from this highway onto highway No. 11, which crosses the railway approximately at right angles, their automobile stalled or stopped at, or about, the center of the railroad track and a moment after was struck by a south-bound passenger train. At this point the railway consists of two main tracks running north and south. The track on the west is used for south-bound passenger trains. To the east of this track is one used for north-bound passenger trains.

Highway No. 11 crosses directly over these tracks from west to east. Parallel with the tracks, on the west side thereof, runs highway No. 67E. This highway intersects with highway No. 11 in the town of Higginson, which highway crosses the tracks as aforesaid, and is the principal crossing in that town. Between highway No. 67E and the main line of railway, one hundred and forty yards north of the crossing, is situated a depot, a building 20 x 60 feet. About 100 yards north of the depot is a track known as a "passing" track which connects with the several tracks by switches. Also, about 100 feet north of the depot and between it and the passing track, the Rock Island Railway crosses the Missouri Pacific. Approximately 980 feet north of the crossing, on the same side of the railway as the depot is a temporary track. At the time of the accident in question there were a number of bunk cars standing on the temporary track. A train of cars of some description was on the passing track about 100 yards above or north of the depot, its engine being engaged in switching operations north of the Rock Island crossing. A local freight train was standing on the east track headed north and extending some distance south of the depot, which distance was estimated by some of the witnesses at about fifty yards. To the west of the railroad tracks, on the same side as highway 67E, is the usual line of telegraph and telephone poles.

The above situation is established by the unanimity of the testimony and we find but little dispute in that relating to the movements of the passenger train and the automobile immediately preceding, and at the time of, the collision. The train was traveling at a speed of 65 to 70 miles per hour. The usual blasts of the whistle were given for the crossing and were continued at least until the train reached the Rock Island crossing. Appellees contend that from that point no further signals were given. We think the evidence leaves this question in doubt when viewed in the light most favorable to the appellees. It seems, however, that there is some evidence tending to show that the whistle was not blown or bell sounded from the depot south to the crossing. On the particular question of where the operatives of the train ceased to give the alarm, there is conflict in the evidence. Many witnesses corroborated the testimony of the engineer to the effect that the whistle was blown continuously from above the Rock Island crossing until the crossing of highway No. 11 was reached. However, we must accept the testimony evidently accepted by the jury that there was in fact no signal given after the train passed the Rock Island crossing.

On the question as to the extent of the view to the north of one approaching and entering the crossing from the west, as did appellees' intestate, there is some conflict in the evidence. All the witnesses, however, testified that there are no obstructions to prevent a view of the track to the north one-fourth of a mile from where the automobile turned from highway No. 67E onto highway No. 11, or from that point to the railroad as far north as the depot. At eighteen feet west of the track a point is reached where the view of the tracks beyond the south end of the depot is obstructed, and, at approximately fifteen feet west of the tracks, the view is unobstructed for a considerable distance further north of the depot.

There is no dispute in the testimony relating to the movement of the automobile in which McDaniel and Sanders were riding just before, and at the time, they were killed. When they reached the intersection of highways Nos. 67E and 11 and turned to go over the crossing, they were apparently oblivious to the train approaching from the north although it is quite certain that all...