Missouri Pacific Railroad Company v. Howard

• Decision Date: 11 May 1942
• Docket Number: 4-6737
• Citation: 161 S.W.2d 759,204 Ark. 253
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE, v. HOWARD
• Court: Arkansas Supreme Court

161 S.W.2d 759

204 Ark. 253

MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE, v. HOWARD

4-6737

Supreme Court of Arkansas

May 11, 1942

Appeal from Clark Circuit Court; Dexter Bush, Judge; reversed.

Judgment reversed and cause dismissed.

Henry Donham and Pat Mehaffy, for appellant.

G W. Lookadoo and J. H. Lookadoo, for appellee.

MCHANEY J. MEHAFFY, J., not participating. HUMPHREYS, J., dissents.

OPINION

MCHANEY, J.

Appellee brought this action against appellants, the railroad company and its trustee in bankruptcy, to recover damages for personal injuries she alleges she sustained as a result of a collision between passenger train No. 18 of appellants and an automobile she was driving, on the Main street crossing, in the town of Gurdon, Arkansas, about 6:30 p. m., June 11, 1941. She had been driving south on highway 67, and when she came into Gurdon she turned east on highway 53, which crosses the railroad tracks and leads into the business district over the Main street crossing. A string of box cars was spotted on a passing or side track west of the main line and within four to six feet of the crossing, and it is alleged that these cars cut off her view of train No. 18, approaching from the south, until, while driving very slowly in second gear, she had reached a point too close to the main line track to stop before getting on the track in front of said train, so she gave it the gas in an unsuccessful effort to get across. The train was traveling at from 15 to 20 miles per hour and was in the act of coming to a stop for the station just north of the crossing. The train or some portion of it struck or caught the rear bumper of the car and pushed or knocked the back end of the car north some five or six feet without turning it over and, apparently, without doing it much damage, as appellee drove away from the scene of the accident. Her brother-in-law, riding with her, later took the wheel and drove her to the office of a physician, where she was examined by Dr. McLain who testified she had not been injured in the accident. The negligence alleged was failure to give the statutory signals, failure to have a flagman on the crossing and failure to have other signals of the approach of said train, and that the trainmen operated said train up to and over said crossing without giving any signal, knowing said string of box cars would obstruct the view of persons going over said crossing from the west to the east. She alleged as damages that her "entire nervous system was greatly damaged and upset"; that she had "suffered great and excruciating pain and mental anguish" and will "for a long time to come"; and that her "injuries are permanent and lasting." She prayed for $ 3,000 damages. The answer was a general denial and a plea of her own carelessness and negligence. It alleged that the crossing was protected by a flagman Who warned her of the approaching train, and that it was protected by an electric gong and wigwag signals which were sounding and working.

Trial to a jury resulted in a verdict and judgment for appellee for $ 1,000 and this appeal followed.

Appellee is not a new litigant in this court to recover damages for personal injuries. In Mo. Pac. Transportation Co. v. Howard, 201 Ark. 6, 143 S.W.2d 538, she recovered a judgment for $ 12,000 against the transportation company in the Nevada circuit court for total and permanent disability. That case was reversed for the reasons there stated.

Appellee Stockton and two other witnesses testified to the effect that the train gave no signals of its approach, by ringing the bell or blowing the whistle; that they saw no flasher signal lights, although it is undisputed that there are four such lights on that crossing; that such lights are red and work by electricity, when there is a train on the track within a half mile of the crossing, by automatic control; that these flasher lights were inspected by the signal man, Mr. Sandridge, on the 10th and were again inspected by him ten or fifteen minutes after the accident, and they were found to be in proper working condition; and that they saw no flagman on the crossing who tried to stop them. Of these four witnesses, one was the appellee; another was her brother-in-law, riding with her, who also sued for damages, but failed to recover; another was a discharged employee of appellants and the other was a man from Prescott who is well acquainted with appellee and Stockton and is a good friend of her brother. Only two of them may be said to be disinterested witnesses. In contradiction of the testimony of...