Missouri Pacific Railroad v. Bode

• Decision Date: 09 March 1925
• Docket Number: 219
• Citation: 269 S.W. 361,168 Ark. 157
• Parties: MISSOURI PACIFIC RAILROAD v. BODE
• Court: Arkansas Supreme Court

269 S.W. 361

168 Ark. 157

MISSOURI PACIFIC RAILROAD v. BODE

No. 219

Supreme Court of Arkansas

March 9, 1925

Appeal from Randolph Circuit Court; John C. Ashley, Judge; affirmed.

Judgment affirmed.

Thos B. Pryor and H. L. Ponder, for appellant.

A traveler approaching a railroad crossing is bound to exercise such care and prudence as an ordinarily prudent man would exercise under the circumstances, in looking and listening for approaching trains. 138 Ark. 589; 101 Ark. 321; 45 Ark 431; 65 Ark. 235; 69 Ark. 135; 76 Ark. 225; 78 Ark. 355; 105 Ark. 183; 100 Ark. 527. White, Personal Injuries, § 1009. Where there is nothing in the traveler's approach to the crossing which would excuse him from the absolute duty of looking and listening, the failure to give signals cannot be considered upon the question of contributory negligence. 110 Ark. 166; 104 Ark. 38; 96 Ark. 643; 103 Ark. 374; 101 Ark: 316. A traveler must also take notice of the fact that a railroad crossing is a place of danger. 136 Ark. 249; 117 Ark. 457; 137 Ark. 7; 125 Ark. 163; 288 F. 502.

Pope & Bowers and Tom W. Campbell, for appellee.

The cases cited by counsel for appellant on the question of the duty of travelers at railroad crossing are not applicable. Contributory negligence on the part of a person injured by a train at a railroad crossing will not defeat a recovery for damages, unless his negligence is as great as that of the company. C. & M. Dig. 8575. And that is a question for the jury to determine. 147 Ark. 28; 151 Ark. 34. An instruction is not erroneous because it does not cover every phase of, or all the issues in, the lawsuit. 88 Ark. 524; 83 Ark. 61; 80 Ark. 19; 88 Ark. 433; 144 Ark. 641; 147 Ark. 302; 141 Ark. 280.

OPINION

MCCULLOCH, C. J.

Appellee 's intestate, F. C. Bode, was killed in a collision between an automobile which he was driving and one of appellant's passenger trains at the village of O'Kean, in Randolph County, Arkansas, and this is an action instituted by appellee to recover damages for the benefit of the estate and of the next of kin.

The collision occurred at one of the street crossings in the village during the afternoon of August 14; 1923. The deceased was crossing the railroad track from east to west, and the train with which the automobile collided was coming from the north. It was charged in the complaint that the men operating the engine were guilty of negligence in failing to give the statutory signals by bell or whistle, and in failing, after discovering the perilous position of deceased near the track to exercise ordinary care to prevent the collision. Both of the charges of negligence were denied in the answer, and contributory negligence of the deceased was also pleaded.

After the conclusion of the introduction of testimony, and before the court's instructions were given to the jury, counsel for appellee expressly withdrew all claim of liability based on discovered peril, and also expressly conceded that deceased was guilty of contributory negligence in failing to look and listen for approaching trains. The case went to the jury on instructions on the issue as to negligence of the employees of appellant in failing to give the statutory signals and upon the issue Whether the negligence of deceased was equal or greater in degree than the alleged negligence of returned a verdict in favor of such employees. The jury appellee, awarding damages in the sum of $ 5,000.

According to the testimony adduced, Mr. Bode, the deceased, was a merchant and farmer, residing at O'Kean. His storeroom fronted the railroad in the village, and his residence fronted on a street a block away from the railroad. About 3:30 o'clock in the afternoon in question, deceased got in his car at his residence and drove northwesterly to a street which crosses the railroad track at right angles, and when he reached that street he turned west and attempted to cross the main track, when his automobile was struck by a southbound passenger train.

There was a sidetrack about forty feet east of the main track, and, according to the testimony of one of the witnesses, the whistle of the train was blown about a quarter of a mile north for the station, and deceased was then within about sixty feet of the track. He was seen by numerous witnesses, and they all testified that, when he crossed the sidetrack going in the direction of the main track, he appeared to be unconscious of the approach of the train from the north, and had his head turned towards the south, as if looking in that direction. The way was clear towards the north, and he could have seen the train approaching if he had looked in that direction. The witnesses testified that, just as he was about to drive up on the main track, he turned his head to the north, and apparently saw the train coming, but it was too late for him to get out of the way. The testimony also shows that he slowed down his ear just before he went on the main track, but did not stop.

There is a conflict in the testimony about the giving of the statutory signal. All of the witnesses testified that the whistle was blown north of the station, but there is a conflict as to whether or not the bell was rung or any signal given after the first blast of the whistle.

The evidence warranted a finding that the men in charge of the train did not, as required by statute, continue to sound the bell or whistle until after the crossing was passed. It is earnestly insisted by counsel for appellant that the verdict of the jury is not supported by legally sufficient evidence and that the court should have taken the case away from the jury by a peremptory instruction. We cannot agree with counsel,...