Overstreet v. MISSOURI PACIFIC RAILROAD COMPANY

• Court: U.S. District Court — Western District of Arkansas
• Writing for the Court: JOHN E. MILLER
• Citation: Overstreet v. MISSOURI PACIFIC RAILROAD COMPANY, 195 F.Supp. 542 (W.D. Ark. 1961)
• Decision Date: 06 July 1961
• Docket Number: Civ. A. No. 1579.
• Parties: Mrs. Lillian OVERSTREET, Plaintiff, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant.

195 F. Supp. 542

Mrs. Lillian OVERSTREET, Plaintiff, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant.

Civ. A. No. 1579.

United States District Court W. D. Arkansas, Fort Smith Division.

July 6, 1961.

Daily & Woods, Fort Smith, Ark., George W. Leopold, Muskogee, Okl., for plaintiff.

Harper, Harper, Young & Durden, Fort Smith, Ark., for defendant.

JOHN E. MILLER, Chief Judge.

This suit was commenced March 3, 1961, by the plaintiff, Mrs. Lillian Overstreet, to recover damages for personal injuries received by her on August 5, 1959, while she was a passenger in an automobile being driven by her husband, C. A. Overstreet, Sr., which automobile was struck by a Diesel locomotive of the defendant at a grade crossing in the City of Fort Smith, Arkansas.

In numbered paragraphs 6 and 7 of the complaint, the plaintiff alleged:

"6.

"That the driver of the automobile in which plaintiff was riding as a passenger proceeded north onto the south edge of the `defendant's crossing' in the course of crossing the same, at which point the motor of the plaintiff's automobile failed and stopped and it stalled on the south edge of the `defendant's crossing', and on the east side of Towson Avenue. That at this time a train belonging to the defendant and operated by its agents, servants and employees was approaching the `defendant's crossing' from the north northwest at a substantial distance from said crossing, and was being negligently operated in the manner hereinafter particularly alleged. That the defendant's said train continued onto the `defendant's crossing', without slackening its speed, and while the plaintiff's automobile was stalled at the southeast corner thereof, striking the plaintiff's automobile with great force and violence.

"7.

"The aforesaid collision of the defendant's train with the plaintiff's automobile was solely and proximately caused by the negligent acts and omissions of the defendant on the part of its agents, servants and employees operating said train, in the following particulars:

"(a) Failure to keep a constant lookout for persons and property upon the defendant's track at `defendant's crossing,' as the defendant's said train approached the same, as required by the statutes of Arkansas, whereas if such duty had been discharged by the persons operating said train the peril of the plaintiff would have been discovered in time to have avoided the collision.

"(b) Operating the defendant's train over its branch line across a public crossing at a time when the bell was not being rung or the whistle blown, as required by the statutes of Arkansas.

"(c) After discovering the plaintiff's peril, or after they could and would have discovered same had they discharged their duty as set forth in subparagraph (a) above, the defendant's agents, operating said train, negligently failed to stop the same in time to avoid the collision, although they had ample time and space in which to do so.

"(d) After discovering the plaintiff's peril, or after they could and would have discovered same had they discharged their duty as set forth in subparagraph (a) above, the defendant's agent, operating said train, negligently failed to apply the brakes thereof and slow its speed and thereby minimize the force of the collision between the defendant's train and the plaintiff's automobile and thereby avoid the serious and permanent injuries resulting to the plaintiff from such collision, as hereinafter alleged, although they had ample time and space in which to do so.

"(e) Under all of the facts and circumstances attending at the time and at the place of the `defendant's crossing', which were well known to the defendant through its agents, servants and employees, or should have been well known to it in the exercise of ordinary care on the part of its agents, servants and employees, it was grossly negligent in operating its train across `defendant's crossing' without maintaining a flagman at said crossing to warn motorist lawfully using the public highways at that point, and particularly this plaintiff, of the dangers and perils there existing.

"(f) In operating the defendant's train in the City of Fort Smith as it approached and entered a crossing of a busy public thoroughfare at an unlawful, high and dangerous rate of speed."

Following the above allegations, the plaintiff alleged specifically the personal injuries received by her; the amount of the medical, surgical, hospital, nursing and drug bills incurred by her; and prayed for judgment against the defendant in the amount of $250,000.

On March 21, 1961, the answer of the defendant was filed in which the defendant admitted that a collision occurred on August 5, 1959, at approximately the time and place alleged in the complaint, but denied that at the time the collision occurred that the plaintiff and her husband were each exercising due care for their own safety and for the safety of others; and denied that the crossing of its tracks over Towson Avenue in the City of Fort Smith at the place described in the complaint was one of extreme danger and hazard to occupants of motor vehicles traversing Towson Avenue.

The defendant admitted that the automobile in which plaintiff was riding stopped at the south edge of defendant's tracks on the east side of Towson Avenue and at the time a train belonging to defendant and operated by its employees was approaching Towson Avenue from the northwest, but denied that the train was being negligently operated; that the employees operating its train failed to keep a lookout for persons and property on the track at the crossing in question, and that plaintiff was discovered by them in time to have avoided the collision. The defendant further denied that the employees were operating said train across a public crossing without ringing the bell or sounding the whistle as required by law, and that after discovering plaintiff's position, they negligently failed to stop said train in time to avoid the collision and denied "they had ample time and space in which to do so."

In numbered paragraph 7 of the answer the defendant stated:

"7.

"Defendant denies that the employees operating said train, after discovering plaintiff's position, negligently failed to apply the brakes of the train or to slow its speed, and denies that they had ample time and space in which to do so, and denies that they could have avoided or minimized the force of the collision between defendant's train and the automobile in which plaintiff was riding and thereby have avoided injuries to plaintiff. Defendant denies that it was grossly negligent in operating its train across the crossing in question without maintaining a flagman at that point, and affirmatively states it was not required either by law or by the exercise of ordinary care to do so. Defendant denies that as its train approached said crossing it was being operated at an unlawful, high and dangerous rate of speed."

In numbered paragraphs 11, 12, 13, and 14, the defendant alleged:

"11.

"Further answering, defendant states that as its train approached the crossing in question the employees in charge of operating the same were keeping a constant lookout for persons and property upon the track ahead, as required by law, and that said train was being operated with the exercise of ordinary care and at a reasonable and careful rate of speed, and that as the same approached said crossing the bell on the locomotive had been and was being sounded in the manner provided by law and in the exercise of due care. Defendant further states that at the crossing in question, and at the time alleged in the complaint, there was installed and in operation at said crossing two sets of automatic flashing lights, each set consisting of two flashing lights facing in each direction, that is north and south, so that each set of said lights contains four flashing lights, two facing in each direction. One set of said lights was located immediately north of defendant's tracks and immediately south of defendant's tracks and immediately east of Towson Avenue, and both sets were plainly visible to the driver of the automobile in which plaintiff was riding, and to the plaintiff, as the same approached said crossing. Said flashing lights were in working order and in good condition, and as defendant's train approached said crossing and at a great distance therefrom the said flashing lights and a bell located thereon commenced operating, sounding a warning, with said lights flashing red both to the north and south on both sides of Towson Avenue at a time when the automobile in which plaintiff was riding was far enough away from said crossing to have observed the same and to have taken notice that a train was approaching, and plaintiff and the driver of the automobile in which she was riding were thus warned of the approach of said train, not only by the sounding of the whistle and the bell thereon but by the operation of said flashing lights and the bell thereon, in ample time for them to have avoided going onto said crossing at danger to themselves. That notwithstanding the operation of said lights facing toward them on both sides of said track and the sounding of said other signals as aforesaid, plaintiff and the automobile in which she was riding continued to approach said crossing, in disregard of said warning signals, and thereby plaintiff and the driver of said automobile failed to exercise ordinary care for their own safety in going onto and stopping same at the edge of said tracks, thereby exposing themselves to danger, although they knew said crossing was there and knew, or by the exercise of ordinary care on their part could have known, that a train was approaching thereon, and because of her failure to exercise ordinary care in that regard plaintiff was guilty of contributory negligence sufficient to bar a recovery on her part.

"12.

"Further answering, defendant states that it was the duty of plaintiff to keep a lookout and to exercise

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