Scott v. St. Louis, Iron Mountain & Southern Railway Co.

Decision Date28 May 1906
PartiesSCOTT v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
CourtArkansas Supreme Court

Appeal from Crittenden Circuit Court; Allen Hughes, Judge; reversed.

Reversed and remanded.

Frank Smith and J. W. & M. House for appellant.

It is only where the facts and circumstances are such that all reasonable men must from them draw the same conclusion that the court should determine the question of negligence as a matter of law. 159 U.S. 603. The question whether or not the deceased was guilty of contributory negligence was one for the jury to determine. 21 N.W. 212; 37 N.W. 149; 107 Pa.St 8; 33 N.W. 161; 18 L. R. A. 60; 9 L. R. A. 521; 73 Me. 591; 21 N.Y.S. 159; 20 S.W. 490; 101 N.Y. 419, 426; 88 Am. Dec 353; 14 Abb's Prac. N. S. 29; 40 N.Y. 11; 89 Hun, 596; 23 N.Y.S. 193; 140 N.Y. 639; 147 Mass. 495; 116 Mass. 540; 4 Am St. Rep. 364; 26 S.W. 20; 68 Miss. 566; 39 N.J.L. 193; 8 A. 789; 23 N.W. 123; 55 N.W. 771; 24 N.W. 827; 22 N.W. 88; 105 Ind. 406; 34 Iowa 158; 20 S.W. 163; 41 Cal. 421; 20 Ont. App. R. 244, and many other authorities.

B. S. Johnson and J. E. Williams, for appellee.

The path in use was not a public crossing, nor any part of a public highway. That it was frequently used by pedestrians did not change its character and convert it into a highway for footmen. 46 Ark. 522. From the evidence, the time of day, and the physical facts, deceased was, as a matter of law, guilty of such contributory negligence as to bar recovery. 65 Ark. 235; 54 Ark. 431; 74 Ark. 372; 69 Ark. 135; Ib. 380; 4 Elliott, Railroads, § 1703; 38 S.W. 311; 54 Ia. 57; 63 S.W. 362; 56 Ark. 457; 62 Ark. 156; 61 Ark. 549; 62 Ark. 235; Ib. 245; 64 Ark. 368; 65 Ark. 429; 62 N.E. 455; 201 Pa. 124; 63 S.W. 594.

Frank Smith and J. W. & M. House, for appellant in reply.

There are exceptions to the rule requiring a person crossing a railroad track to look and listen which are as well established as the rule itself. The case presented by this record falls within the exceptions. Authorieies cited in our original brief, as also cases cited by appellee, sustain this doctrine. 65 Ark. 235, 239; 88 S.W. 911 and Ib. 98, when considered together; 86 S.W. 282, 284. See also 4 Ark. Law Rep. 531; 5 do. 245.

MCCULLOCH J. HILL, C. J., and BATTLE, J., dissent.

OPINION

MCCULLOCH, J.

This is an action brought by Lula L. Scott, as administratrix of the estate of her deceased husband, George W. Scott, to recover damages resulting from the death of said George W. Scott, caused by the alleged negligence of the defendant, St. Louis, Iron Mountain & Southern Railway Company. He was run over and killed by defendant's train at Earle, a station in Crittenden County on defendant's road, and negligence of the servants of the company is charged in "kicking" a caboose and several box cars down the main track without keeping a lookout and without giving warning of the approach of the cars. The defendant denied the charge of negligence, and alleged contributory negligence on the part of said decedent in failing to look and listen for approaching cars before going upon the track.

The court directed a verdict in favor of the defendant, and plaintiff appealed. The sole question for our determination, therefore, is whether the testimony, giving it the strongest probative force, was sufficient to warrant a verdict in favor of the plaintiff.

It is not contended that the evidence did not establish negligence on the part of the train operatives in failing to keep a lookout. Witnesses testified that the caboose and box cars were "kicked" down the main track, and that no one was on or near the end of the train keeping lookout. But it is urged that, according to the undisputed evidence, deceased was guilty of negligence in going upon the track in front of the approaching cars without looking and listening.

The facts are substantially as follows: The village of Earle contains about 200 or 250 inhabitants, and lies mainly on the north side of the railroad track, though there is one business house and several residences on the south side of the track. There is a switch track about 6 feet north of and parallel with the main track, and a spur track called the "Crittenden spur," curving off from the south side of the main track, which runs out to a sawmill. The spur connects with the main track 471 feet west of the point where deceased was run over, and it is 192 feet from the latter point (where deceased was run over) due south to the spur. The main track and sidetrack are upon a dump or embankment about 8 feet high, and across them runs a path which has been generally and frequently used by those residing in the vicinity in crossing the tracks. Deceased was traveling this path, going south, when he was run over and killed. There is a seed house on the dump, and the path crosses the track 3 or 4 feet east of it. When the injury occurred, there were several box cars standing on the switch track within 3 or 4 feet west of the path. The path, after crossing the switch track, diverged slightly towards the east, so that it was 21 feet from the center of the switch track, where the path crossed, to the center of the main track at the crossing.

The injury occurred in the day time. Deceased lived on his farm, a short distance south of the station, and on this occasion had visited the postoffice, which was north of the tracks, and was attempting to recross, going southward. The freight train had come in from the east, passed the station and switches and, backing toward the east, detached the caboose and two or three cars on the rear end of the train, and "kicked" them down the main track, and the balance of the train with the engine attached backed down the Crittenden spur. Deceased walked up the dump, traveling the path and upon the switch track, and about came to a stop in the middle of that track near the end of the line of the line of the stationary cars, and looked toward the right. He could not then, on account of those stationary cars, see down the main track, whence the caboose and cars were approaching, but could see the balance of the backing train on the Crittenden spur, which was then about due south of him about 60 yards distant. He passed over the switch track, following the path which diverged to the left, and was in the act of stepping upon the main track, when the moving caboose struck and instantly killed him. His head was found between the rails of the main track, and his body between the two tracks. The witnesses say that just as the caboose struck him he looked to the right over his shoulder and threw up his hands. His back was almost squarely toward the approaching cars as he traveled the path between the tracks.

This occurred in broad daylight, and evidently deceased could have seen the approaching cars if he had looked. There was nothing to hinder. The only question is, therefore, whether we shall say that he should have looked, and, that, as a matter of law, he was guilty of negligence when he failed to do so.

In the recent case of Tiffin v. St. Louis, I. M. & S. Ry. Co., 78 Ark. 55, 93 S.W. 564, after announcing the general rule that travelers upon the highway, before going upon railroad crossings, are bound to look and listen for the approach of trains, and that it is deemed negligence per se for them to fail to do so, we stated certain exceptions where such omission can not be said to be negligence per se, but should be left to the jury to determine whether or not the failure to look and listen was consistent with the exercise of ordinary care. The following, among other exceptions to the general rule, was stated: "Where the circumstances are so unusual that the injured party could not reasonably have expected the approach of the train at the time he went upon the track." Citing French v. Taunton Branch Railroad, 116 Mass. 537; McGhee v. White, 66 F. 502; Bonnell v. D., L. & W. R. Co., 39 N.J.L. 189. We declined to apply this exception in that case because the state of the proof did not warrant it. The evidence established the fact that trains were constantly passing the crossing in each direction.

In McGhee v. White, supra, a decision by the United States Circuit Court of Appeals for the Sixth Circuit, the facts were that a traveler attempted, at a public crossing, to cross the railroad track where a work train had passed about a minute and a half before, and was struck by another train going in the same direction, and it was held that the case was one for the jury to determine whether or not under those circumstances he was guilty of negligence, as he had reason to believe that another train was not following within so short a time or distance. Judge Taft, speaking for the court, said: "At least, this circumstance prevents us from holding, as a matter of law, that his failure to look was contributory negligence. It required the submission of the issue to the jury."

In French v. Taunton Branch Railroad supra, the facts were that the plaintiff, without looking up or down the track, attempted to cross immediately after a train had passed, and was run over by cars following behind it which had been detached from the same train for the purpose of making a running switch, and it was held that the question of contributory negligence was properly submitted to the jury. The court, in disposing of the question, said: "Whether the plaintiff was in the exercise of that due care which persons of common prudence and intelligence would exercise when placed in a similar situation, and whether she was careless in failing to look up the track at the point near the crossing where it was visible, was a question for the jury to determine in the peculiar circumstances of the case." Ferguson v. Wisconsin Cent. Ry. Co. 63 Wis. 145, 23...

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