Missouri Pacific Railroad Co. v. Myers

• Decision Date: 03 February 1930
• Docket Number: 128
• Citation: Missouri Pacific Railroad Co. v. Myers, 23 S.W.2d 980, 180 Ark. 1067 (Ark. 1930)
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. MYERS
• Court: Arkansas Supreme Court

23 S.W.2d 980

180 Ark. 1067

MISSOURI PACIFIC RAILROAD COMPANY v. MYERS

No. 128

Supreme Court of Arkansas

February 3, 1930

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge affirmed.

Judgment affirmed.

Thos B. Pryor, Vincent M. Miles and Thos. B. Pryor Jr., for appellant.

C. M. Wofford, for appellee.

OPINION

BUTLER, J.

This is a suit brought by the appellee against the appellant to recover for damages to an automobile which resulted from a collision with appellant's passenger train at Alma, on the 8th of December, 1928. There was a trial in the circuit court of Crawford County, resulting in a verdict and judgment for the appellee, from which this appeal is prosecuted.

The facts may be briefly stated as follows: Lee Lollis, while in the employ of the appellee, and in the discharge of his duties, left the home of the appellee in a Chevrolet car to journey to Little Rock. His route lay through the town of Alma, where he arrived about 3:30 o'clock in the morning. Passing through the town on the main street, he reached the railway crossing, and found it blocked by a freight train. He turned and went one block east to find the crossing there blocked by a locomotive attached to the train which blocked the Main street crossing. The engineer in charge of the locomotive, in compliance with a signal given by Lollis, backed his locomotive so that about one-half of the crossing was left clear, giving sufficient room for Lollis to pass, which he did, and proceeded two blocks to the north, where he found the highway blocked at that point. He then returned to the crossing over which he had just passed, where he found the locomotive in the same position as when he crossed.

There is a dispute as to whether the headlight of the locomotive was shining, or whether it had been turned out, Lollis stating that it was lighted, and the operators of the train that it was not. Before attempting to cross the track again, Lollis stopped his car about fifteen feet from the track, putting his car in low gear, and starting over the crossing directly in front of the locomotive. Passing on from thence his car reached the main track just as a passenger train was passing, which train struck his automobile, demolishing it. As Lollis passed from in front of the locomotive and entered on the space between the side track and the main track, he discovered the approach of the passenger train, and, being unable to stop his car, he turned it so that it went at an angle on to the main track and not directly in front of the passenger locomotive. The testimony is conflicting regarding the giving of signals by the blowing of the whistle and the ringing of the bell for the crossing. Witnesses for the appellant all testified that such signals were given, and Lollis testified that he did not know the passenger train was approaching, and did not hear any whistle sounded or bell rung. The testimony to the effect that the engineer and fireman on the passenger locomotive were keeping a lookout, and that they did not see, and could not have seen, Lollis until he had passed from in front of the freight locomotive on the side track, was uncontradicted. When Lollis stopped his car just before entering upon the crossing, he saw two or three men in the cab of the freight engine, and the headlight of the freight engine was turned on. The men he saw were the engineer and the firemen of the freight train. They were expecting the passenger train, and had entered on the side track for the purpose of clearing the main line for its passage, and, at the time Lollis entered the second time upon the crossing in front of the freight locomotive, the engineer was looking back in the direction from which the passenger train was approaching. The fireman at that time was shoveling coal into the furnace of the locomotive, one of the brakemen was on the left side, two or three cars back from the engine, looking over the train, and another was standing south of the depot, some distance away from the crossing. None of the train crew were watching the crossing in front of the locomotive, and none saw Lollis when he approached the second time, or when he went upon the crossing, passing in front of the locomotive, just before the collision. The car Lollis was driving was a closed car, and it is uncertain whether or not the windows of the car were up, the testimony on this point not being very clear. The locomotive and freight cars on the side track prevented Lollis from seeing the approaching passenger train, and prevented the engineer and fireman on that train from seeing him.

At the request of the appellee, the court gave the following instruction: "Under the laws of this State, it is the duty of all persons running trains upon any railroad in the State to keep a constant lookout for persons and property upon the tracks of such railroad. If any person or property is injured by the neglect of any employee of any railroad to keep such a lookout, the company owning or operating such railroad shall be liable and responsible to the person injured for all damages resulting from the neglect to keep such lookout, notwithstanding any contributory negligence, if any be shown, on the part of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care; and the burden of proof is upon the railroad to establish the fact that this duty to keep...