Missouri Pacific Railroad Company v. Doyle

• Decision Date: 30 March 1942
• Docket Number: 4-6701
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE, v. DOYLE
• Court: Arkansas Supreme Court

160 S.W.2d 856

203 Ark. 1111

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

4-6701

Supreme Court of Arkansas

March 30, 1942

Appeal from Lawrence Circuit Court, Eastern District; S. M. Bone Judge; reversed.

Judgment reversed, and cause dismissed.

Thomas B. Pryor and Ponder & Ponder, for appellant.

S L. Richardson, for appellee.

HOLT J. HUMPHREYS, J., dissents.

OPINION

HOLT, J.

Appellees, Lenora Doyle and Roy Doyle, her husband, sued appellant, railroad company. Lenora Doyle sought to recover for personal injuries growing out of a collision between a freight train of appellant and a Chevrolet automobile which she was driving, in the town of Hoxie, Arkansas, at about six o'clock p. m., October 3, 1940. Roy Doyle sought to recover for loss of his wife's services and damages to the automobile which he owned. The allegations of negligence were (a) that appellant operated its freight train without giving signals; (b) without keeping the statutory lookout; and (c) operating the train at night without a headlight.

Appellant denied all allegations of negligence and affirmatively pleaded contributory negligence of appellee, Mrs. Doyle, as a complete bar to any recovery.

Upon a trial, and at the conclusion of all the testimony, appellees abandoned the allegation that the train was operating without a headlight, it being conceded by all parties that the headlight was burning. The court instructed the jury that the evidence showed that the operatives of the train were keeping the required lookout and took that issue from the jury, and the only issue of negligence on the part of appellant was confined by the court to the alleged failure to give any signals of the approach of the train to the crossing where the collision occurred. The jury returned a verdict in favor of Lenora Doyle in the amount of $ 800, and for Roy Doyle in the amount of $ 200. This appeal followed.

Appellant earnestly insists that the proximate cause of the collision and the consequent injuries in this case, was due solely to the negligence of appellee, Lenora Doyle, the driver of the car in question, that her negligence exceeded that of appellant, and that the trial court erred in refusing to so instruct the jury. We think this contention of appellant must be sustained.

Stating the facts in their most favorable light to appellees, they are to the effect that appellee, Mrs. Doyle, in company with Miss Scarlett, was driving her husband's (Roy Doyle) Chevrolet automobile along paved highway No. 67 by the depot in the town of Hoxie, Arkansas, at about six p. m., October 3, 1940. Mrs. Doyle drove along the highway at about 20 or 25 miles per hour (the highway paralleling appellant's railroad track and about 60 feet west of it) to a point where there is a street crossing about one block north of the depot. She turned off the pavement to the east and approached the crossing at a speed of ten or fifteen miles per hour. It was a prematurely dark, rainy afternoon and Mrs. Doyle had the headlights of her automobile burning. As she approached the crossing, she looked both ways and saw the headlight from an engine of the freight train of appellant approaching the crossing from the south, the direction of the depot. This freight train was moving about ten or fifteen miles an hour. Mrs. Doyle knew that passenger train No. 8 was stopped at the depot and she testified that she thought that the headlight on the approaching freight train was the light on the passenger engine. It is undisputed that the light on the passenger engine was not burning and that there was but one light which she saw, that from the approaching freight engine. Mrs. Doyle, after observing the headlight on the freight engine approaching the crossing, without stopping her car, drove onto the crossing and was immediately struck by the freight engine.

Miss Scarlett, her companion, heard and saw the freight train coming and jumped to safety before the collision.

As to whet happened as Mrs. Doyle approached the crossing, we copy here her testimony from appellee's brief: "A. If they had blown, or rung the bell, I would have heard it. Q. Do you recall which way you looked first as you made the turn there at Ring's crossing, that is, to the south or to the north, do you remember? A. Oh, I looked south. Q. Did you see anything down there then; did you see any lights of any kind? A. Yes, I saw a headlight. Q. Where did that headlight look to you to be at that time? A. About one-third of the way between the depot and Ring's. Q. Is that in the vicinity of where you knew that No. 8 engine had stopped? A. Just exactly where I thought it stopped. Q. Did you see one light or two lights? A. I saw one.

"I slowed down considerably, to about ten miles per hour, to make the turn and proceeded toward the tracks at that speed. When I saw that one light, I thought No. 8 had stopped. He would give a 'highball' to leave and it would be plenty of time for me to cross. I then looked to the north. At the very last minute I decided that light was moving, but it was as close from me as from here to the jury at that time, and I don't see how I could have done anything then to avoid being struck. I didn't have any brakes that would have stopped then, and I could not have turned either to the right or left and avoided the collision, but it never occurred to me to turn. Miss Scarlett had jumped from the car just before it struck.

"Q. Could you have jumped and avoided being in the collision after you saw and knew the train was coming? A. Well, I am like the captain of a ship; I believe in staying with the boat. Q. There wasn't anything you could have done about it? A. If I had jumped, I would have landed in the track, that is what I thought."

And on cross-examination, Mrs. Doyle testified: "Q. When you were within twelve feet of it, what did you do; did you make any attempt to stop your car or do anything at all? A. When I saw the light I still thought it was stopped, because when you are in front of...