St. Louis, I. M. & S. Ry. Co. v. Hitt

• Decision Date: 01 July 1905
• Citation: 88 S.W. 911
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HITT.
• Court: Arkansas Supreme Court

88 S.W. 911

ST. LOUIS, I. M. & S. RY. CO. v. HITT.

Supreme Court of Arkansas.

July 1, 1905.

Appeal from Circuit Court, Nevada County; Joel D. Conway, Judge.

Action by Luther A. Hitt against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

B. S. Johnson, for appellant.

HILL, C. J.

This case presents the same questions as to the liability of the appellant which are presented in No. 5,506, St. Louis, Iron Mountain & Southern Ry. Co. v. Robert W. Hitt (decided this day) 88 S. W. 908. This case was tried first, and in Nevada county, and that case in Clark county, and brought here on separate records, but have been argued together. They arose from the same occurrence. The facts will be found stated in the Robert Hitt Case. In this case the court gave on behalf of the appellee the following instruction: "(5) You are instructed that mere proof that the plaintiff looked and listened as he started to drive upon the track, and that he did not look again, does not alone establish the contributory negligence. You should take into consideration all the facts and circumstances in evidence, and if from these you believe that the plaintiff acted as a reasonable, prudent man, then he would not be deemed to have been guilty of contributory negligence." In Railway v. Crabtree, 69 Ark. 138, 62 S. W. 64, the court said: "If he is struck and injured by a train at the crossing, which he might have seen had he continued on his guard, it would not be sufficient on a trial for the injury for the judge to say generally that it is the duty of one about to cross a railroad to look and listen for trains, but he should go further, and explain that this means that a traveler should continue to use his eyes and ears until the track and danger are passed." In Railway v. Cullen, 54 Ark. 431, 16 S. W. 169, Chief Justice Cockrill, for the court, said: "A failure to look and listen is therefore evidence of negligence on his part; and if the injury is the consequent result, and his want of precaution is unexplained by circumstances which might mislead an ordinarily prudent man to throw him off his guard, he cannot have reparation for the injury, because his own want of care is the author of his misfortune." In Martin v. Railway, 62 Ark. 156, 34 S. W. 545, the court said: "We do not hold that in every case where a traveler fails to look and listen and is injured by a train while crossing a railway track, the case should be taken from the jury. It...