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

• Decision Date: 01 July 1905
• Citation: 88 S.W. 908
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HITT et al.
• Court: Arkansas Supreme Court

88 S.W. 908

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

Supreme Court of Arkansas.

July 1, 1905.

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

Action by Robert W. Hitt and others against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

These facts are deducible from the evidence most favorable to sustain the verdict: On Sunday night, in January, 1902, the Hitts drove from their home, near the central part of Nevada county, into Prescott, a town of more than 3,000 inhabitants. They were in a covered wagon, and arrived at the crossing at Elm street after dark. The covering extended two feet over them, and on either side, leaving only the view in front unobstructed. This crossing was in the center of the town. It was a cold, windy day, and had been sleeting. The ground was covered with sleet and ice. When they reached the crossing, they found it blocked by a freight train on the side track, 1,200 feet long, standing a few feet from the main line. A brakeman was standing at the crossing, and they asked him when they could cross, The crossing remained blocked about 10 minutes, when the freight train "cut the crossing." Then they discussed whether it was safe to cross. Luther E. Hitt got up and looked up and down the track; extending his head beyond the wagon cover, thereby enabling him to see both ways. His father called his attention to some cars on the track, and after discussing it they concluded it was safe to cross. In driving across they continued to look forward, but did not extend their heads beyond the covering to see on either side. The town maintained an are light almost immediately over the crossing, and the headlight of the freight engine was burning, shedding its rays over the crossing. There were cars on both sides of the crossing. The train which struck them came from the southwest, and was about an hour late. Looking from where they were standing, in the middle of Elm street, the view was obstructed by cars on the spur track; a freight train was standing on the passing track; and down the railroad were two large warehouses and a coalhouse, which completely cut off their view from the direction which the train came. The passenger engine was lighted with an electric headlight, whose beams could be seen a half a mile; but the reflection of this may not have been seen on the crossing in front of them, on account of the light thrown by the arc light and the headlight of the engine. Luther Hitt testifies he did not detect it, although looking ahead. The sleet and ice on the ground deadened the sound of the train, until, as the witnesses stated, it was running rather soft, and did not make as much noise as usual. The train ran in past the crossing at a speed of from 18 to 20 miles an hour, and without ringing the bell or sounding the whistle, struck the wagon in which the Hitts were sitting, killed the father, and injured the son. The point at which they stopped and looked out from under the wagon sheet was 82 feet from the track where they were struck. The center of the side track was 14 feet and 6 inches from the center of the main track, and the spur track was still between the wagon and the side track. They started to drive across slowly. The brakeman at the pilot of the freight engine was standing on the ground, and they passed in front of him, not more than 25 feet away. No watchman was kept at the crossing. The brakeman made no effort to stop the wagon, and he knew the passenger train was coming.

Among other instructions given were the third and fourth, which are as follows:

"(3) You are further instructed that if you find from the evidence that the deceased or his son stopped, looked, and listened before driving upon the track, and further believe that by reason of the obstructions on the side track—the arc light maintained by the town and the headlight of the freight engine, if you believe these lights were burning —could not see the headlight of the passenger train, or the reflection thereof, in time to have avoided the injury, and that no signals were given as defined in these instructions, and that the deceased and his son took such precautions as would have enabled them to have seen or heard the train if such signals had been given, you may find for the plaintiff as to the issue of contributory negligence.

"(4) If you believe from the evidence that the death of the deceased was caused by the negligence of the defendant company, a recovery cannot be defeated on the ground of contributory negligence unless it appears from the evidence that the deceased himself failed in the exercise of ordinary prudence, and that such failure so contributed to the injury that it would not have occurred if he had been without fault. Contributory negligence will not be presumed, but must be proven by a preponderance of the evidence."

The court refused to give the sixth instruction requested by appellant, which is as follows:

"(6) The court instructs the jury that if they find from the testimony in this case that at the time in question a freight train was standing on a track parallel to the track on which the approaching train was, and that such freight train was between plaintiffs, on the highway, and the approaching train, so that the approaching train could not be seen or heard readily, then the plaintiffs had no right to drive on the track without taking precautions after they passed beyond the freight train, where they could see and hear the approaching train, and there looking and listening before attempting to cross the track in front of the approaching train; and if they failed to do this, and in consequence of such failure were injured, your verdict should be for the defendant."

The appellees received a judgment for $10,000. Hitt was 56 years of age; was making $1,000 per annum, derived from farming, trading, and the mercantile business. He left a wife and nine children, of whom six were minors at the time of his death—the youngest about five years old. He was a stout, healthy man, and shrewd in business affairs. A witness was asked, "What was his character, with reference to attention to and care of his family?" and answered, "It was very good." Again he was asked: "You say ...