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

• Decision Date: 04 April 1896
• Citation: 35 S.W. 216
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. LEATHERS.
• Court: Arkansas Supreme Court

Page 216

35 S.W. 216

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

Supreme Court of Arkansas.

April 4, 1896.

Appeal from circuit court, White county; Grant Green, Jr., Judge.

Action by Henry Leathers against the St. Louis, Iron Mountain & Southern Railway Company for death of his minor son. From a judgment for plaintiff, defendant appeals. Reversed.

Dodge & Johnson, for appellant. J. N. Cypert, for appellee.

HUGHES, J.

This is an appeal from a judgment against the railway company for damages for killing a 12 year old son of the appellee, while attempting to cross the railroad track in front of a train, which was backing at the time it struck the boy, with no one on the end of the train next to the deceased to keep a lookout.

The boy was attempting to cross at a crossing obstructed by a train of the appellant company. The view from the backing train, that struck him, to a point beyond where he was killed, was open and unobstructed. The fireman and engineer of the train that killed him testified that they did not see the boy until after he was struck. The jury must have inferred that the employés of the railway company might have seen him before striking him, if they had kept a constant lookout, as required by the act of April 8, 1891, and in time to have prevented striking him; and, under the circumstances and testimony in the case, this was a question for the jury. We would not disturb the finding as to this, if there was no question of contributory negligence in the case.

The court gave, of its own motion, several instructions, to which no objections were made by defendant. The court refused to declare the law as set out in the fourth, fifth, and sixth instructions as asked by the defendant, but gave the same in a modified form. That part of the instructions in parentheses, italicized, was the modifications made to defendant's instructions, over defendant's objections, in which form they were given by the court. "(4) If the jury find, from the evidence, that the deceased came upon the track so close to the backing engine and tender that it would have been impossible for those in charge of the engine to have prevented his being run over or struck (had they been keeping a lookout for persons on the track) you will find for the defendant. (5) You are instructed that contributory negligence is a complete defense to actions of this character, and if you find, from the evidence, that the deceased, Samuel Leathers, was guilty of negligence, in being on or near the track, and that, without such negligence on his part, the accident would not have happened, then you will find for the defendant, even though you should find that the defendant's employés failed to keep a proper lookout, or were guilty of negligence in any other particular charged in the complaint, unless you further find that the defendant's employés became aware of the negligence of deceased in time to have avoided injuring him, and failed to exercise such care (or that they failed to keep a lookout for persons on the track, when if by keeping such a lookout the injury might have been avoided). (6) You are instructed that it is negligence for one at a railroad crossing to go upon the railroad track without first looking up and down the track, and listening for any approaching train or engine. And a failure to so look and listen will prevent a recovery from the railway company for an injury occasioned thereby, unless the employés of the railway company became aware of the negligence of the injured party in time to have avoided injuring him by the exercise of reasonable care, and failed to exercise such care (or if he might have been discovered by keeping a lookout, and they failed to keep such lookout)." The jury returned a verdict in favor of plaintiff for $350. Defendant filed a motion for a new trial, which was overruled. Exceptions were saved, and defendant appealed.

These instructions were erroneous. The fourth was inconsistent in itself. Each one of them ignored the doctrine of contributory negligence, which we hold still applies to cases like this, notwithstanding the act of April 8, 1891, which provides (section 1) "that it shall be the duty of all persons running trains in this state, upon any railroad, to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employés of any railroad to keep such lookout, the company owning and operating any such railroad, shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, and the burden of proof shall devolve upon such railroad to establish the fact, that this duty has been performed." Acts 1891, p. 213. This act has been construed by this court in an opinion delivered by Justice Wood, at the present term of this court, in the case of Johnson v. Stewart, 34 S. W. 889. We adhere to the ruling in that case respecting the effect of that statute upon the doctrine of contributory negligence. In our opinion, it makes the failure to keep a constant lookout by the employés of a railroad company negligence, and puts the burden upon the railroad company to establish the fact that it has kept such lookout. This is the extent of the change made in the law by this statute, which, in our opinion, does not, in such cases as this abrogate the doctrine of contributory negligence. "It has been repeatedly held by this court that one who is injured by mere negligence of another cannot recover, at law or equity, any compensation for his injury, if he, by his own or his agent's ordinary negligence or willful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him, except when the direct cause of the injury is the omission of the other party, after becoming aware of the injured party's negligence, to use a proper degree of care to avoid the consequences of such negligence." Railway Co. v. Cavanesse, 48 Ark. 124, 2 S. W. 505, and cases cited. This is a doctrine which, according to the great weight of authority, seems founded in reason and justice, and which, in our opinion, the act referred to was not intended to and does not abrogate. If it had been the intention of the legislature that passed this act to abolish the right to interpose the defense of contributory negligence in such a case, it could, should, and doubtless would, have said so in unambiguous terms. As said by Judge Wood in Johnson v. Stewart, supra, "where the negligence of the plaintiff contributes proximately to cause the injury of which he complains the defendant is not liable," unless the defendant, after becoming aware of the plaintiff's negligence, could, by the use of proper care, have avoided the consequences of such negligence. Before the passage of this act it was the duty of railway employés to keep a lookout at crossings, as repeatedly held by this court; and it was never thought that this fact would exempt a party injured by a railway at a crossing from the consequences of his own negligence, which contributed to the injury. The question of contributory negligence should have been submitted to the jury.

For the error in modifying said instructions 4, 5, and 6, as indicated, and giving them as modified, the judgment is reversed, and the cause is remanded for a new trial.

BATTLE, J.

I do not concur with the court as to the interpretation of the act of the general assembly, entitled "An act to better protect persons and property upon railroads in this state," approved April 8,...