St. L., I. M. & S. Ry. v. Box

• Court: Arkansas Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: St. L., I. M. & S. Ry. v. Box, 12 S.W. 757, 52 Ark. 368 (Ark. 1890)
• Decision Date: 11 January 1890
• Parties: ST. L., I. M., & S. RY. v. Box

12 S.W. 757

52 Ark. 368

ST. L., I. M., & S. RY. v. Box

Supreme Court of Arkansas

January 11, 1890

APPEAL from Craighead Circuit Court, J. E. RIDDICK, Judge.

This is an action to recover damages for personal injuries sustained by the plaintiff in being thrown from his wagon while passing over the defendant's track at a defective road-crossing. The answer denies any negligence on defendant's part and charges contributory negligence on the part of the plaintiff. The evidence shows that the plaintiff drove a wagon over defendant's tracks in Corning, at the crossing near the depot, for the purpose of getting a load of lumber. After the wagon was loaded with lumber he started back to cross the track at the same crossing. The lumber projected considerably in front. Plaintiff drove the team up an incline, which was 5 feet to 110 feet to the crossing. There were three tracks the main track and one side track on each side. Plaintiff crossed the side track without difficulty, but when he arrived at the main track the wheels struck the plank outside of the rail and the team stopped and quit pulling, and the wagon rolled back some two or three feet. Plaintiff then took the whip and struck one of the mules, which started up again and pulled the wagon over the rail. The fore wheels went into a hole some eight or ten inches deep between the rails. The jar threw plaintiff forward on the double-tree; he caught on the double-tree and the tongue and was about recovering himself when something struck him on the back or side and knocked him back. He could not recover himself, but fell to the ground, and was run over by the wagon and badly hurt. He had driven over the same crossing that day and many times before. He knew its condition, as did everybody in Corning. It was in bad condition, and the citizens had been complaining of it for some time. The next nearest crossing was about half a mile north.

The court charged the jury as to the measure of damages and also gave them the following instructions, which were objected to by the defendant:

1. It does not follow as a rule of law because a person undertakes to pass a defective or dangerous crossing over a railroad track, which he can see, and is thereby injured, that he is guilty of contributory negligence and cannot recover for his injury; but he should be careful in proportion to the danger and may proceed to cross if it be consistent with reasonable prudence to do so, and, in this case, it is a question for the jury to say whether the plaintiff was in the exercise of reasonable prudence and ordinary care in attempting to cross at the time of the injury complained of, and in arriving at their conclusion on this subject, they should take into consideration the condition of the crossing, and plaintiff's knowledge of the same, and also the condition in which the wagon with which he was attempting to cross was loaded, and other circumstances in proof.

2. If the jury find from the evidence that the plaintiff was injured while attempting to pass with his wagon a public crossing, placed by defendants over their railway, that the crossing was in a defective condition at the time, by reason of the negligence of the defendant, and that the injury to the plaintiff was caused by said defective crossing while he on his part, was in the exercise of ordinary care and prudence, they will find for the plaintiff.

The jury returned a verdict for the plaintiff, assessing his damages at $ 1000, and the defendant appealed.

Judgment affirmed.

Dodge & Johnson, for appellant.

1 Plaintiff was guilty of contributory negligence. Had he taken the most ordinary precautions, he would not have been injured. 25 Mich. 294.

2. If the crossing was notoriously defective and plaintiff knew it and yet could have avoided it by using another crossing, or could have passed in safety by proper loading or driving, or the exercise of prudence, then a failure in either particular is negligence, in law, contributory to the injury. 90 Mass. 138; 12 Cush., 488; 3 Allen, 21; 5 Allen, 1; 33 Ohio St. 24; 6 id., 109; 3 id., 172; 61 Iowa 101; 15 N.W. 855; Beach Cont. Neg., p. 257; 46 Pa. 316. In this case there was another crossing near by, known to him, which was safe, and he should have crossed there. His failure was negligence. 64 Ill. 19; 71 id., 238; 61 Barb., 437; 11 Hun., 543; 84 Pa. 230. See also 101 Pa. 622; 11 East, 60; 119 Mass. 564; 23 Wisc., 635; 63 Mo. 420; 45 Mo. 452; 61 id., 591-2.

F. G. Taylor, for appellee.

1. Because a crossing is defective, and not per se dangerous persons who know of its defects are not obliged to abandon travel, if in the exercise of ordinary care and prudence they might reasonably expect to avoid the obstruction, or if the defects were of such a character as that a...