Missouri Pacific Railroad Company v. Shell

• Decision Date: 29 January 1945
• Docket Number: 4-7486
• Citation: 185 S.W.2d 81,208 Ark. 70
• Parties: Missouri Pacific Railroad Company, Thompson, Trustee, v. Shell, Admx
• Court: Arkansas Supreme Court

185 S.W.2d 81

208 Ark. 70

Missouri Pacific Railroad Company, Thompson, Trustee, v. Shell, Admx

No. 4-7486

Supreme Court of Arkansas

January 29, 1945

Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge.

Affirmed.

Henry Donham and Richard M. Ryan, for appellant.

Tom J. Terral, Cooper Thweatt and Chas. B. Thweatt, for appellee.

OPINION

Robins J.

This appeal challenges four judgments in favor of appellees against appellants, based on jury verdicts, each for $ 6,000 damages, rendered in separate suits brought by Mrs. Zola Shell, as administratrix of the estate of her deceased husband, Clyde Shell, appellee, by Mrs. Lee May Aldridge, as administratrix of the estate of her deceased husband, Robert Aldridge, appellee, by Mrs. Vera Cheatham, as administratrix of the estate of her deceased husband, Aubrey Cheatham, appellee, and by appellee, Mrs. Doris Smith, as administratrix of the estate of her deceased husband, Vernon Smith. In each action damages in the sum of $ 50,000, for the benefit of the widow and next of kin, for the alleged negligent killing by appellants of the respective intestates, were sought.

On the petition of the nonresident appellant, Guy A. Thompson Trustee for the Missouri Pacific Railroad Company, debtor, the four suits were removed to the United States District Court for the Western District of Arkansas. That court, on motions of appellees, remanded the suits to the circuit court. Answers denying all the allegations of the complaints were filed and the cases were consolidated for trial.

Clyde Shell, Robert Aldridge, Aubrey Cheatham and Vernon Smith, whose deaths are involved herein, were workmen employed at the Aluminum Plant situated some distance north of Malvern, Arkansas. Their work shift ended at 12:00 o'clock midnight. At about 1:00 o'clock in the morning of February 20, 1943, as they were returning from work to their homes in Hot Spring county in an automobile driven by Clyde Shell, and while attempting to drive over the railroad crossing, on Main Street, in the city of Malvern, they were struck and killed by fast passenger train No. 26, traveling northeast from Texarkana, toward Little Rock.

It is first urged by appellants that the verdicts of the jury were contrary to the law and the evidence. The negligence relied on by appellees consisted of alleged failure, on the part of the operators of the train, to give the signals required by § 11135 of Pope's Digest of the laws of Arkansas, and to keep a lookout as required by § 11144 of Pope's Digest. It is insisted by appellants that there was no evidence upon which a finding of negligence on the part of these employees of the railroad company could be based, and that the evidence conclusively showed that the collision was brought about solely by reason of the negligence of the driver of the car.

Main Street runs in a southeastern and northwestern direction and crosses the main line of the track of the railroad company at right angles. The train which struck the automobile was approaching from the southwest. The automobile was being driven southeast. There was a passing track of appellant a short distance from and parallel to the main line track, and about eighty feet northwest of appellant's main line track, a track belonging to the Chicago, Rock Island & Pacific Railroad Company crossed the street.

In the middle of the street crossing, a few feet from the main line track, there was an electric "blinker" signal, which began flashing warning lights whenever a locomotive approached within 2,303 feet of the crossing. These warning lights were flashing at the time the automobile was driven onto the crossing, but it is undisputed that there was a locomotive "parked" on either side of the crossing, one about four hundred feet away facing northeast and the other closer to the crossing and facing southwest. There was evidence that the presence of at least one of these locomotives near the crossing was sufficient to cause the "blinker" lights to flash. There was some testimony from which the jury might have found that the headlights of both of these parked locomotives were burning.

The passenger train which struck the automobile was traveling at a high rate of speed. Witnesses on behalf of appellants placed the speed of the train at from fifty-five to sixty miles an hour, and trainmen testified that a speed of seventy miles per hour at that point was permissible under the company's rules. Some witnesses for appellees estimated the speed of the train as high as seventy miles per hour. The engineer in charge of the passenger train had died before the trial, but the fireman testified that the engineer had begun to sound the whistle and ring the bell about a mile from the crossing, and that these signals were kept up continuously until the crossing was reached. This testimony was corroborated to a considerable extent by numerous other witnesses. The fireman also testified that he saw the automobile approaching the crossing, and thought that it was going to stop before it reached the track, and that when he realized that it was going on the track in front of the train he cried out to the engineer, but it was then too late to avoid the collision. Air brakes were not applied until after the collision and the train ran a distance of a quarter of a mile after striking the automobile before it could be stopped. The track at the point where the collision occurred was straight for a distance of approximately one-half mile to the southwest at which point there was a slight curve to the south. The effect of the testimony of several witnesses on behalf of appellees was that the bell was not rung as the train approached the crossing and that the whistle was not sounded until immediately before the train struck the automobile. The credibility of these witnesses is attacked by appellants, but, under the long established rule of this court, the credence to be given to the testimony of witnesses is solely within the province of the trial jury. Farmers' Club Company v. Emmerson Mercantile Company, 153 Ark. 614, 241 S.W. 372; Home Life & Accident Company v. Scheuer, 162 Ark. 600, 258 S.W. 648; Laflin v. Brooks, 180 Ark. 1167, 22 S.W.2d 169; St. Louis-San Francisco Railway Company v. Burford, 180 Ark. 562, 22 S.W.2d 378; Gaster v. Hicks, 181 Ark. 299, 25 S.W.2d 760; St. Louis-San Francisco Railway Company v. Bishop, 182 Ark. 763, 33 S.W.2d 383; Missouri Pacific Railroad Company v. Rodden, 187 Ark. 321, 59 S.W.2d 599; Greenlee v. Rolfe, 187 Ark. 1162, 60 S.W.2d 568; Browne v. Dugan, 189 Ark. 551, 74 S.W.2d 640; Metropolitan Life Insurance Company v. Pope, 193 Ark. 139, 97 S.W.2d 915.

We conclude that there was substantial testimony to support the contention of appellees that the statutory signals were not given as the train approached the crossing, and it therefore becomes unnecessary to discuss the testimony as to keeping of lookout.

Numerous cases in which it was held that one injured in a collision at a railroad crossing was precluded from recovering are cited by appellants, but none of them presents exactly the same fact situation as the case at bar. "No inflexible rule can be laid down as to when or under what circumstances a traveler at a public railroad crossing will be free from contributory negligence in going over the crossing; but each case must necessarily depend upon its own particular facts." Smith v. Missouri Pacific Railroad Company, 138 Ark. 589, 211 S.W. 657.

Under the testimony presented in this case the question of contributory negligence on the part of the occupants of the automobile was one for the jury to decide. Smith v. Missouri Pacific Railroad Company, supra; Memphis, Dallas & Gulf Railroad Company v. Thompson, 138 Ark. 175, 210 S.W. 346; Missouri Pacific Railroad Company v. Myers, 180 Ark. 1067, 23 S.W.2d 980; Chicago, Rock Island & Pacific Railway Company v. French, 181 Ark. 777, 27 S.W.2d 1021; Missouri Pacific Railroad Company v. Watt, 186 Ark. 86, 52 S.W.2d 634; Missouri Pacific Railroad Company v. Brown, 187 Ark. 1163, 59 S.W.2d 34; Texas & Pacific Railway Company v. Stephens, 192 Ark. 115, 90 S.W.2d 978; Missouri Pacific Railroad Company, et al., v. Westerfield, 192 Ark. 558, 92 S.W.2d 862.

While the warning lights were flashing when these men drove on the crossing, it appears that there were two locomotives, one standing on each side of the crossing and facing the crossing, and there was testimony that one of these would have set the "blinker" signal to operating. The jury might have concluded that this led the occupants of the automobile to assume that the signal was being operated as a result of the proximity of one of the locomotives standing near the crossing and that, for that reason, failure...