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

• Decision Date: 29 January 1912
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. WELLS.
• Court: Arkansas Supreme Court

143 S.W. 1069

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

Supreme Court of Arkansas.

January 29, 1912.

Appeal from Circuit Court, Franklin County; Jeptha H. Evans, Judge.

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

W. E. Hemingway and Lovick P. Miles, for appellant. S. R. Chew, for appellee.

McCULLOCH, C. J.

The General Assembly of 1907 (Laws 1907, p. 687) enacted a statute providing that it shall be unlawful in the operation of railroads to permit freight trains "to remain standing across any public highway, street, alley, or farm crossing * * * for more than ten minutes," or to "fail to leave a space of sixty feet across such public highway," etc. Appellant, in violation of this statute, partially blocked a street crossing in the town of Ozark, Ark., and appellee sued for and recovered damages for personal injuries received while attempting to cross the track. The evidence shows that the train stood over the crossing and completely blocked it for about 37 minutes, and then was cut, and an opening of about 25 feet was made between the cars. The cars still covered the greater portion of the space which had been prepared for the crossing of vehicles, and those who attempted to pass over while the train stood there, including appellee, were forced to go outside of the beaten track, along a rough and unprepared way, where it was very rocky, and there was not planking to smooth the way over the rails. Appellee was driving a hack, and, stopping 40 or 50 feet from the crossing, waited for a considerable time for it to be opened. After it was partially opened, he discussed with another traveler the advisability of attempting to cross, and decided to do so. The unblocked part of the crossing was covered to some extent with weeds and grass, which obstructed a view of the rocks and other obstacles. Appellee started to drive over the crossing, after others had crossed, but, when the wheels of his vehicle struck the rail at the place where there was no planking, it "skidded," and threw one side of the vehicle higher than the other, causing him to lose his balance and fall out of the hack. There is no controversy as to the extent of his injuries, nor as to the excessiveness of the amount of damages recovered. The question whether appellee was guilty of negligence in attempting to drive over the partially blocked crossing was properly submitted to the jury, for it cannot be said as a matter of law that it constituted negligence for him to do so. "A person who, in the lawful use of a highway, meets with an obstacle, may yet proceed if it is consistent with reasonable care so to do; and this is generally a question for the jury, depending upon the nature of the obstruction and all the circumstances surrounding the party." Mahoney v. Railway Co., 104 Mass. 73. This court in St. Louis, Iron Mountain & Southern Ry. Co. v. Box, 52 Ark. 368, 12 S. W. 757, quoted with approval the above language of the Massachusetts court, and added that "a traveler is not compelled to abandon the use of the only highway conveniently accessible to him, merely because he is apprised that it is out of repair."

The only point urged upon our attention here by learned counsel for appellant is that the unlawful failure of the trainmen to open the crossing was not the proximate cause of appellee's injury. We do not agree with counsel in that contention. The partial blocking of the crossing for a longer time than the statute permits constituted negligence. Travelers are not compelled to abandon a partially obstructed crossing if its use in that condition was consistent with reasonable care for their own safety. In other words, the partial blocking of the crossing, in violation of the statute, constituted negligence on the part of the railway company, and it became then a question for the jury to determine, under the peculiar facts and circumstances of the case, whether...