St. Louis, I. M. & S. Ry. Co. v. Evans
| Decision Date | 23 July 1906 |
| Citation | 96 S.W. 616 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. EVANS. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Faulkner County; George M. Chapline, Judge.
Action by R. A. Evans against the St. Louis, Iron Mountain & Southern Railway
Company. From a judgment for plaintiff defendant appeals. Affirmed.
Oscar L. Miles, for appellant. Sam Frauenthal, for appellee.
This action is for personal injuries received by a traveler on a public road crossing a railroad track. The court has had numerous cases of the kind recently. The Hitt Cases (Railway v. Hitt [Ark.] 88 S. W. 908, and Id. [Ark.] 88 S. W. 911, 990) Railway v. Dillard (Ark.) 94 S. W. 617, and Railway v. Wyatt (Ark.) 96 S. W. 376, have called for discussion of the rules governing the respective conduct of the traveler and the operatives of the train at public crossings. This case is free of the difficulties presented in those cases. Briefly stated, appellee's evidence tended to prove: A string of wagons headed by one occupied by Puckett and appellee Evans left the town of Conway, traveling along the Conway and Quitman public road. About two miles from Conway the highway crossed the track of appellant railroad company at a place called "The Gap." The highway was upgrade to the railroad track from a branch, a distance of about 100 yards, until close to the track. For a short distance, some 15 or 20 steps, before reaching the track the highway is level. To the west the railroad curves around a hill, so that a train from that direction cannot be seen until the traveler is almost to the track, and then only to be seen a distance of 50 or 60 yards. Puckett and Evans drove up this grade slowly, stopped on the level ground close to the track, and looked and listened for approaching trains. Evans rose up from his seat and looked both ways, and both becoming satisfied that there was no train approaching, slowly drove on the crossing and continued to watch as they drove on, and were caught by a rapidly moving train from the west coming around the curve. The whistle sounded just before the engine struck the wagon. Evidence of appellee, also, tended to show that the whistle was sounded at Doty's field, a distance of 160 rods from the crossing; but this was not heard by appellee and his companion on the other side of the hill from that point, and there were no other signals given until the alarm whistle sounded an instant before the engine struck the wagon. Evans and Puckett only saw the train after they were on the track. Puckett was driving, and as soon as he saw the train whipped up his horses trying to get them across, but was unable to do so. The appellee and some of his witnesses were contradicted by statements in writing made to appellant's claim agent, and appellant's evidence put a different aspect to the case.
1. The first point made in the evidence does not support the verdict. Taking the appellee's evidence to be true, and the jury have so found it, it presents a clear case for recovery.
2. The appellant's next point is that the only allegation of negligence is in failing to sound a whistle or ring a bell or give proper warning at a crossing, and that it was error to give an instruction stating that, if the evidence showed that the appellee was injured by the operation of the train, the law presumes the railroad company was negligent, and a prima facie case is made out. That such an instruction is correct has been often decided. See numerous cases cited to that effect in Barringer v. Railway, 73 Ark. 548, 85 S. W. 94, 87 S. W. 814. Appellant attempts to take the case without the rule by insisting that the presumption cannot extend to the particular negligence charged in the complaint. The complaint here charges generally negligence in running the train into the wagon of appellee as well as the particular negligent act of failing to give the statutory signals before...
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