Missouri Pacific Railroad Company v. King

• Decision Date: 24 June 1940
• Docket Number: 4-6010
• Citation: 143 S.W.2d 55,200 Ark. 1066
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE v. KING
• Court: Arkansas Supreme Court

143 S.W.2d 55

200 Ark. 1066

MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE v. KING

4-6010

Supreme Court of Arkansas

June 24, 1940

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

Judgment reversed and case dismissed.

Henry Donham, for appellant.

W F. Denman, John Ferguson and Tom W Campbell, for appellee.

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

OPINION

SMITH, J.

At about 9 o'clock on the night of September 25, 1938, a southbound passenger train of the Missouri Pacific Railroad Company ran over and severed appellee's foot. He recovered judgment in the sum of $ 15,000 to compensate the injury, and from that judgment is this appeal.

The injury occurred at the Third street crossing in the town of Beebe. It is not questioned that appellee was guilty of contributory negligence, but the cause was tried upon the theory that the negligence of the railroad company was greater than appellee's negligence. This issue was submitted to the jury under an instruction numbered 4, given at appellee's request, which reads as follows: "You are instructed that in all suits against railroads, for personal injury, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured, the amount of recovery shall be diminished in proportion to such contributory negligence."

There is no question as to the competency of any testimony admitted or excluded, and the controlling question is that of the sufficiency of the testimony to support the finding that the negligence of appellee was of less degree than that of the railroad company. This is ordinarily a question of fact for the jury, but, as was said in the case of Missouri Pacific Railroad Co. v. Davis, 197 Ark. 830, 125 S.W.2d 785, quoting from the case of St. Louis-San Francisco Railway Co. v. Horn, 168 Ark. 191, 269 S.W. 576, cases may arise in which the question becomes one of the legal sufficiency of the testimony to support the finding made, and that this is a question of law for the court.

In passing upon this question of the legal sufficiency of the testimony to support the verdict, we must-- and we do--give to the testimony offered in appellee's behalf, and to the undisputed testimony its highest probative value, with all the inferences properly deducible therefrom.

When so stated and viewed, the testimony is to the following effect. The injury occurred on a railroad track in front of the office and hospital of Dr. W. H. Abington, which is on Third street, directly facing the railroad. Dr. Abington heard appellee cry out after the train ran over appellee's foot, and he went at once to the place where appellee was found, and he and two other men carried appellee to the hospital, where an immediate operation was performed and appellee's leg was amputated. As appellee was being carried to the hospital, Dr. Abington asked him, "What is the matter, old man, how come you let that train hit you out there on a straight track?" Appellee answered: "I guess I didn't pay attention, and when I first noticed the train it was so close to me I didn't have time to get off the track, and it excited me and I started to run and struck my foot against the rail and fell."

Appellee denied this testimony only inferentially in detailing the circumstances of his injury, which he described as having occurred in the following manner. He started walking at "a common gait" over the tracks crossing Third street. The first track which he crossed was the switch track. North of the crossing on this switch track there were some boxcars, which obstructed the view north on that track. Next in order was the north mainline track, on which northbound trains ran. Next in order was the south mainline track, on which southbound trains ran.

Third street, on which appellee was walking, is a gravel street, and is narrow, and as appellee approached the south mainline track he saw a truck approaching the railroad crossing on Third street which he thought was about to cross the railroad, but upon reaching the intersection of Third street and highway No. 67, the truck turned to the left and proceeded north on highway 67. Appellee stepped aside to permit the truck to pass, as he supposed it intended to do, and as he did so he tripped or stumbled over the gravel and fell. It was 113 feet from the place where he fell to the point where Third street intersects highway 67.

Appellee testified as follows: "Q. Tell the jury whether or not you looked and listened for trains before going on the tracks of the railroad? A. I looked both ways and listened before I started on it. Q. Could you see any train? A. No, sir. Q. Did you hear any train? A. I heard a train whistle way down by the lumber shed. Q. How far away is the lumber shed from the crossing where you were? A. I judge a half mile. Q. Were you familiar with the operations of trains down about the lumber shed--was there any switching ever done down there? A. Yes, sir. Q. What was that situation--what make of trains switched down there around the lumber shed? A. There was a switching track there and they switched at all times. Q. State whether or not it was a usual thing for freight trains to whistle down at the lumber shed? A. Yes, sir. Q. Was there any obstruction between you and the direction where you heard that train whistle north--was there any obstruction there? A. Yes, sir. Q. What was there? A. The freight house and two box cars on the spur track beside the freight house. Q. After you passed on over the switch track--that would put you past the obstruction--tell the jury whether or not you looked up the track when you got past the box cars--did you look up the track, north? A. Yes, sir. Q. Did you see any train up there? A. No, sir. Q. Did you hear any train up that way after you heard the train whistle? A. No, sir. Q. What did you do then? A. Well, I proceeded to go on across."

Appellee further testified that after falling, as hereinabove stated, he saw the train right on him as he attempted to get up, and he made a desperate effort to get out of the way, but failed to get one leg out of the way.

It is an undisputed fact that after appellee had crossed the switch track, there was nothing to obstruct his vision for a great distance to the north and far beyond the lumber shed, where he said he heard a train whistle, and the fact is undisputed that he was struck by the train whose whistle he heard. There was no other train in that vicinity.

We know as a physical fact- -the testimony of appellee to the contrary notwithstanding--that, had he looked to the north after crossing the switch track, he would have seen the headlight of the engine. Numerous witnesses testified that the headlight was burning, and no one testified to the contrary, although several testified that it was not burning as brightly as headlights usually burn, but was red or dim and not bright. When asked if the headlight was burning, appellee answered that he did not know. The physical fact is that he would have known had he looked.

The train was a passenger train, and the testimony is that it was running at an excessive speed--70 miles or more per hour. The testimony is...