Smith v. Missouri Pacific Railroad Co.

• Decision Date: 05 May 1919
• Docket Number: 204
• Citation: 211 S.W. 657,138 Ark. 589
• Parties: SMITH v. MISSOURI PACIFIC RAILROAD COMPANY
• Court: Arkansas Supreme Court

211 S.W. 657

138 Ark. 589

SMITH v. MISSOURI PACIFIC RAILROAD COMPANY

No. 204

Supreme Court of Arkansas

May 5, 1919

Appeal from Lawrence Circuit Court; Dene H. Coleman, Judge reversed.

STATEMENT OF FACTS.

John Smith sued the Missouri Pacific Railroad Company for damages for injury to himself and to his automobile caused by a collision with one of the defendant's trains at a public crossing in the town of Swifton, Arkansas. The facts are as follows:

On the 28th day of February, 1918, at about 9:30 o'clock in the morning, John Smith started across the railroad track at a public crossing north of the depot in the town of Swifton Arkansas, in a seven-passenger automobile. A southbound train struck the hind wheel of the automobile as it was passing over the main track of defendant's line of railroad and demolished the automobile and severely injured Smith. Swifton is a town of about six hundred inhabitants. The railroad track runs north and south directly through the town. The depot is on the west side of the track and there are two public crossings in the town, one north and one south of the depot. The track is straight for a considerable distance north of the depot. There is a gin on the right side of the right-of-way of the railroad near the north crossing. It was in operation on the day of the injury and there were a good many people in town. It was very dry and the atmosphere was filled with smoke and dust. On the morning of the injury John Smith went to town in his automobile and stopped on the east side of the railroad track opposite the depot. He put some things in his automobile and then went north along a public street parallel with the railroad track. The track was perfectly straight for 10 or 12 miles north of the crossing. As he went up the street some trees just outside of the right-of-way and some telegraph poles on the right-of-way on the east side of the railroad track obstructed his view to the north to some extent. Smith drove his automobile up the street facing the way the train was coming and when he got to the crossing he turned to the left to go across the railroad track. He was going 10 or 12 miles an hour up the street parallel to the railroad track, but slowed down to five or six miles an hour when he made the turn to go on the crossing. He first crossed the passing track and when he got on the main track, the hind wheels of his automobile were struck by a southbound train. Smith looked and listened for a train until he turned on to the crossing, but did not see nor hear one until the train was right on him and it was too late to get off of the track. The train was going at the rate of fifty miles an hour at the time it struck the plaintiff. Its usual schedule time was forty-two miles an hour.

Other witnesses corroborated the plaintiff as to the speed of the train and as to the fact that smoke and dust obscured the view of the train.

Several other witnesses testified that no warning of the approach of the train was given by ringing the bell or blowing the whistle.

On the other hand both the engineer and fireman testified that the engineer blew one long blast of the whistle for the station then four blasts for the crossing as required by the statute that just after the engineer blew the whistle for the station that he set the bell to ringing and never shut it off until the train was stopped; that the bell on the engine rings automatically; that the engineer was on the right hand side of the engine and, although keeping a lookout, he could not see the plaintiff until the train was right on him; that the fireman was also keeping a lookout and that as soon as he saw the plaintiff was going to drive upon the track, he gave the alarm to the engineer and that everything that was possible to do was done in order to stop the train and avoid injuring the plaintiff; that he at first thought that the plaintiff was not going to try to cross the track ahead of the engine and believed that he would stop at a safe distance away from the track; that he gave the alarm as soon as he discovered that the plaintiff intended to cross.

The court directed the jury to return a verdict for the defendant and from the judgment rendered the plaintiff has appealed.

Judgment reversed and cause remanded.

W. A. Cunningham and W. P. Smith, for appellant.

It was error to instruct a verdict for defendant. A case for a jury was made by the evidence giving it its strongest probative force in appellant's favor and the judgment should be reversed for a new trial by a jury. No bell was rung or whistle sounded. It was dark and dusty, the speed was excessive and a proper lookout was not kept. Appellant was not guilty of contributory negligence at a public crossing. There were questions for a jury on the evidence and should be submitted to a jury upon the conflicting evidence. Bush v. Brewer, 136 Ark. 246; 74 Ark. 408; 89 Id. 496; 92 Id. 445. The evidence shows that due diligence was not used, nor due precautions taken for plaintiff's safety and to avoid the injury and a case was made for a jury.

Troy Pace, for appellee.

1. The operatives of a train have the right to assume that a traveler approaching the track when a...