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

• Decision Date: 22 November 1915
• Docket Number: (No. 3.)
• Citation: 180 S.W. 490
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. FITZHUGH.
• Court: Arkansas Supreme Court

180 S.W. 490

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

(No. 3.)

Supreme Court of Arkansas.

November 22, 1915.

Appeal from Circuit Court, Cross County; W. J. Driver, Judge.

Action by Robert Fitzhugh against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Troy Pace, of Little Rock, and Gordon Frierson, of Jonesboro, for appellant. Walter Newton Killough and Killough & Lines, all of Wynne, for appellee.

McCULLOCH, C. J.

The plaintiff, Robert Fitzhugh, received personal injuries and also injuries to his wagon and team in a collision with a freight train while attempting to cross the railroad track at a public street crossing in the city of Wynne, Ark., and this is an action to recover the damages. The verdict of the jury was in favor of the plaintiff, and his damages were assessed at the sum of $394 on account of injury to the team and wagon, and $1,500 for personal injuries, making a total of $1,894.

The collision occurred in the afternoon when plaintiff was driving along a street in the city of Wynne, which crossed the railroad at a point near the crossing of that line over another line of railroad. The two lines of railroad intersect each other at right angles, one line running due north and south, and the other line about east and west. Plaintiff was attempting to cross a street running north and south, and the train which struck him was coming from the west. The testimony tends to show that as he approached the crossing his team was going at a slow trot, and when they reached the incline leading up to the railroad crossing the speed of the team was reduced to a walk. Plaintiff testified that he looked and listened for a train, but heard no signals and no sound of an approaching train, and drove on the crossing, and that the engine of the approaching train struck the wagon and pitched him out of it. The engine was pulling a train of eight cars, and the testimony tends to show that at the time the collision occurred it was running at a speed of 12 or 15 miles an hour, and that no alarm, either by bell or whistle, was being made. There were cars on a side track which obstructed the view of travelers approaching the crossing. The evidence adduced on the part of the defendant tends to show that the bell was being rung at the time of the collision and as the train approached the crossing.

The first contention is that the court erred in refusing to give an instruction telling the jury that the defendant was under no duty of flagging the crossing where the collision occurred, and that its failure to have a flagman at said crossing did not constitute an act of negligence. It is true that the complaint contains an allegation of negligence on the part of the defendant in failing to keep a watchman or flagman at the crossing for the purpose of warning the public of approaching trains, but there was no attempt to support this allegation by proof. All that occurred was that in the lengthy cross-examination of one McKay, the engineer, who was introduced as a witness by the defendant, the question was asked about what the brakeman did who went to flag the railroad crossing at that street crossing. The whole course of the cross-examination was to show the conduct of the train operatives. It does not appear that these questions were asked for the purpose of showing that there was no flagman kept at the street crossing to warn travelers. Nor was the case submitted to the jury on an issue as to whether or not a flagman was kept at that crossing; and conceding that it was not an act of negligence for the defendant to fail to keep a flagman at that crossing, we do not think that any prejudice resulted, for under the testimony in this case and the instructions of the court it is not...