Railway Company v. Lewis

• Decision Date: 13 April 1895
• Citation: 30 S.W. 765,60 Ark. 409
• Parties: RAILWAY COMPANY v. LEWIS
• Court: Arkansas Supreme Court

30 S.W. 765

60 Ark. 409

RAILWAY COMPANY v. LEWIS

Supreme Court of Arkansas

April 13, 1895

Appeal from Greene Circuit Court JAMES E. RIDDICK, Judge.

Action by Lewis against the St. Louis, Iron Mountain & Southern Railway Company to recover for personal injuries caused by the negligence of defendant's trainmen. The facts are stated in the opinion.

Judgment affirmed.

Dodge & Johnson for appellant.

1. The law of this case is well settled, both upon principle and authority. In the case of approaching a crossing, it is a violation of legal duty for the engineer of a train not to be vigilant in anticipation of a traveler at the crossing. The statute emphasizes this duty, under severe pains and penalties. But neither the common law, nor any statute imposes such a duty with refernce to the same traveler, when upon a highway merely in the vicinity of, or in close proximity to, a railroad track. It is only when the traveler upon the highway is, by reason of some unusual circumstance placed in a predicament of peril, and the engineer shuts his eyes to such predicament, and having it in his power to avoid an apparently impending danger to which the traveler is exposed, and refuses to do so, that such refusal or failure can support a charge of negligence. The only class of cases where the engineer must turn his attention from the ordinary duties of running his engine, to guard against the danger which threatens a traveler upon the highway by reason of a frightened team, are cases where, the actions of the team being apparent to the engineer, the latter refuses, when he has opportunity to do so, to stop the noise made by his train, in time to avoid injury to the traveler, whose safety is endangered by his frightened team. Such a case was 8 A. & E. R. Cas. 248. See also 58 Ia. 242; 51 Cal. 605; 69 Me. 208; 114 Mass. 350; 15 A. & E. R. Can. 491; 140 Mass. 79; 37 A. & E. R. Cas. 484; 114 Mass. 351; 98 N.C. 247; 28 N.W. 464; 48 Ark. 370; 12 S.W. 953; 54 Ark. 431. No legal duty owed by defendant to the plaintiff was violated, whether the signal for the crossing was given or not. In so far as the noise caused by whistling for the crossing contributed to the fright of the team, it could not possibly constitute negligence, for it was in the performance of a statutory duty, and the second whistling for brakes was in performance of the common law duty to do all that was possible to check the train, after discovering plaintiff's danger. As to the "unnecessary act" of escaping steam being negligence, see 57 N.W. 545-6.

2. The verdict is contrary, to the evidence.

3. The court erred in its charge to the jury. See cases cited supra.

W. F Lewis, pro se.

The court properly instructed the jury. 58 Ark. 454; 32 N.E. 209; 33 id. 451; 16 S.E. 81; 17 S.W. 375; 1 S.W. 107.

BOURLAND, Special Judge. Riddick, J., disqualified. BUNN, C. J. (dissenting). WOOD, J., concurred in the dissenting opinion.

OPINION

BOURLAND, Special Judge.

This was a suit for personal injuries alleged to have been occasioned by the negligence of appellant's employees in charge of a running train. There was a verdict and judgment for $ 3,000 in favor of Lewis, and the appellant seeks a reversal here on the following specifications of error made in its motion for a new trial: (1.) That the verdict is contrary to the law and evidence. (2.) That the court erred in giving to the jury instructions numbered 2, 3, 6, 7, 8 and 9, respectively. (3.) That the court erred in refusing prayers of appellant numbered 2, 3, 4, 5, 6 and 8, respectively. (4.) That the court erred in modifying, and giving as modified, prayer number 2 asked by appellant. (5.) That the verdict is excessive, and not sustained by the evidence.

The case of Railway Company v. Roberts, 56 Ark. 387, is the fruit of the same accident here in controversy; and, in that case, the proof, except as to the person injured, and as to the nature and extent of the injuries, was the same as in this case. Lewis, appellee, as the result of the catastrophe, was seriously shaken up and painfully jolted, which probably caused a separation of the fibres of the lower abdominal wall, allowing a portion of the intestines to protrude in such a manner as enabled a medical witness to classify the injury as reducible hernia.

Bound north and towards a crossing, Lewis and a companion, in a wagon drawn by a team of mules, were traveling upon a public highway, which, for about six hundred yards, ran on the west of, near, and parallel to appellant's railway. On the opposite side of the highway from the railway was a farm fence, extending some distance along and near the road, and north of the crossing. When the travelers had reached a point about 200 yards distant on the highway, there appeared, bound north, on the railway, "a fast freight" train, making about twenty-five or thirty-miles an hour. The whistle was sounded for the depot, which is 640 yards south of the crossing, but the train did not stop or check its speed. Some 200 yards north of the depot, at or near "a whistling post," which was about 400 yards from the crossing, the whistle was again sounded, in four successive and rapid blasts, as a signal for the crossing, and thence continuously sounded until the crossing was reached. There was evidence that when the whistle was first sounded the train was about fifty yards south of the depot, at which sound appellee's team became frightened; that the train came on with whistle sounding, and emitting steam from the steam cocks on the side of the engine next to the highway; that the sound increased the fright of the team, which, in plain view of persons on the engine, had got beyond the control of the driver, and were running; that the whistling and emissions of steam from the steam cocks were continued until the crossing was reached. There was evidence that when the engine reached the "whistling post," the team was in plain view, frightened and running, and that they continued to run until they reached the crossing, where, although appellee was endeavoring to avoid injury, the team rushed upon the crossing, where the engine struck the wagon, and appellee received his injuries. There was evidence, also, that, at about the time the engine reached the crossing, the whistle was sounded for brakes, the engine reversed, and the train brought to a standstill, some 200 or 300 yards north of the crossing, whilst there was verbal evidence that such a train could not be stopped in a distance less than 600 yards.

By instruction numbered 9, we think the measure of damages correctly given to the jury, and, from the evidence as to the nature of the injury and the resultant suffering, we are not prepared to say that the verdict is excessive.

In the case of Railway Company v. Roberts, supra, this court said: "Whether the injury complained of resulted from negligence upon the part of the defendant was, under the circumstances of the case, a question for the jury. The evidence is sufficient to sustain the verdict." The term "negligence" is relative, and its application depends upon the situation of the parties, and the degree of care and vigilance which the circumstances confronting them reasonably impose. Mr. Cooley, in his work on Torts, second edition, page 752, admirably defines "negligence." He there says that it is "the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury."

Appellant's second, third and fourth assignments of error relate to instructions given and refused.

Instructions given and numbered 2, 3, 6, 7 and 8, respectively, are the same as instructions given in Railway Company v. Roberts, supra, numbered, respectively 2, 3, 10, 11 and 12; and there these instructions, if not all approved, were held not to be unfavorable to appellant; and we think that other instructions asked by appellant and refused were covered by instructions given by the court.

Prayer No. 2 asked by appellant, but refused as asked, is as follows: "If the jury find from the evidence that the engineer of defendant's train was, at the time of the accident, on the lookout, and saw the plaintiff's team just before and as he started to cross the track, and immediately used every effort in his power to control and check his train, but failed because of the nearness of his train to the team, the court instructs you that there was no negligence on the part of the engineer, and you will find for the defendant on this point." The court, however modified the prayer as follows: "Unless you further find that the accident and injury were directly occasioned by the negligence of the engineer in blowing off his steam, and thereby carelessly causing the team to run away;" and gave the instruction as so modified. The instruction as asked was not proper. It took away from the jury the question whether, under the facts presented, the engineer was negligent in blowing off steam, and, if so, whether such negligence was the proximate cause of appellee's injuries. The instruction, as modified and given, was correct. Norton v. Eastern R. Co., 113 Mass. 366; Lamb v. Old Colony Railroad, 140 Mass. 79, 2 N.E. 932; Petersburg R. Co. v. Hite, 81 Va. 767. Lamb v. Ry., supra, was a case where a horse was frightened, and injury resulted from the firing up of an engine at a particular place; and the court there said that "the act of firing up, like that of sounding a whistle or blowing off steam, is one necessarily incident to the running of trains, not continuous, but occasional, and so to some extent capable of being regulated in its use; and it may be negligence to do it in places where there are likely to be persons who may be endangered...