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

• Decision Date: 07 October 1912
• Citation: St. Louis, I. M. & S. Ry. Co. v. Chamberlain, 150 S.W. 157, 105 Ark. 180 (Ark. 1912)
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. CHAMBERLAIN.
• Court: Arkansas Supreme Court

150 S.W. 157

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

Supreme Court of Arkansas.

October 7, 1912.

Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge.

Action by J. T. Chamberlain, administrator of Lee Sullivan, deceased, against the St. Louis, Iron Mountain & Southern Railway Company.From a judgment for plaintiff, defendant appeals.Affirmed.

E. B. Kinsworthy and R. E. Wiley, both of Little Rock, and W. V. Tompkins, of Prescott, for appellant.J. C. Ross and H. B. Means, both of Malvern, for appellee.

FRAUENTHAL, J.

This is an action instituted by the administrator of Lee Sullivan to recover from the St. Louis, Iron Mountain & Southern Railway Company damages for the pain and suffering endured by him by reason of being struck by one of defendant's passenger trains, which resulted in his death.Sullivan was struck at a public crossing in the city of Malvern, where defendant's tracks crossed Main street.The depot was situated on the west side of the tracks, and next it was defendant's main track.Just east of that track and about nine feet therefrom was a side track.On the east side of both tracks and a short distance therefrom was a hotel, at which Sullivan had boarded for several months just prior to the injury.On the morning of July 15, 1911, Sullivan left the hotel for the purpose of going to the depot, and to do this it was necessary for him to cross defendant's tracks at Main street.At this time a freight train was standing on the side track between the hotel and the depot, with its engine about one-half or three-fourths the distance across Main street.Freight cars were attached to the rear end of the engine, and extended southward for a distance of probably 300 yards.The freight train was taking water at a standpipe located just south of Main street, and was emitting large quantities of steam and making a great noise.Sullivan proceeded on foot to the crossing at Main street and across the side track in front of the freight engine, and then stepped on the end of the ties of the main track, when a fast passenger train coming from the south on the main track approached the crossing, and Sullivan attempted to escape by drawing or stepping back, but he was struck by the pilot on the engine, and was so severely injured that he died several hours later.The trial resulted in a verdict for plaintiff for $1,500 damages.The defendant seeks a reversal of the judgment entered thereon, chiefly upon the grounds (1) that the undisputed evidence shows that Sullivan was guilty of negligence contributing to the injury he received; and (2) that the court erred in admitting certain testimony and in giving certain instructions.Upon the trial of the case there was testimony adduced upon the part of the plaintiff tending to prove that the defendant failed to ring the bell or sound the whistle on the passenger train as required by the statute of this state when it approached the crossing, and that said train was running at a high rate of speed through the city of Malvern.While counsel for the defendant do not contend in their brief that there was no testimony sufficient to warrant a finding of negligence on the part of defendant, they chiefly contend that the undisputed evidence shows that the injury which Sullivan received was due to his own contributory negligence.They earnestly argue that if Sullivan had exercised ordinary care in looking or listening after passing the freight engine, and before he stepped up on the ties of the main track, he would have seen the approaching passenger train in the broad daylight, when this injury occurred.

The care that is required by law of a traveler at a public crossing over a railroad track has been repeatedly stated by this court.It has been held that it is the duty of the traveler along the highway attempting to cross a railroad track to look and listen for the approach of trains, and, if he fails to do this, he is guilty of such negligence as will preclude a recovery for an injury resulting from the failure to exercise that care.The traveler must look in both directions, and continue that vigilance until the point of danger is passed, and where the undisputed evidence shows that the injured person had an opportunity to see or hear the approaching train at or before the time of the injury, and that his opportunity was such that he could not have failed to have seen or heard such train in time to have avoided the injury if he had used ordinary care in looking and listening, then the law declares him guilty of negligence barring him of recovery.On the other hand, where the evidence is conflicting, the question as to whether or not a traveler at a public crossing did look and listen for an approaching train before attempting to cross, and whether or not he did continue that vigilance until the point of danger was passed, is ordinarily one of fact for the jury to determine.This is especially so where the moving train is hid from his view by reason of some obstruction.This exception is illustrated by the following cases: Thus in the case of St. L., I. M. & S. R. Co. v. Hitt, 76 Ark. 227, 88 S. W. 908, 990, a traveler stopped at a railroad crossing and looked and listened, but failed to hear an approaching train, which was making little noise on account of sleet, and he was unable to see its headlight by reason of an obstructing train and the converging rays of an are light and the headlight of a freight train standing near; and it was under those circumstances held that the question as to whether in attempting to cross the track he was guilty of contributory negligence was properly left to the jury.In the case of St. L. & S. F. Rd. Co. v. Wyatt, 79 Ark. 241, 96 S. W. 376, a traveler crossed several tracks at a public crossing and was injured, but there was evidence that he looked and listened before going on the track where he was injured, and on account of obstructions was unable to see the approaching train in time to avoid injury, and was unable to hear it on account of other noises.It was there held that the question as to whether he was guilty of contributory negligence was properly submitted to the jury.In the case of St. L., I. M. & S. R. Co. v. Garner, 90 Ark. 19, 117 S. W. 763, a traveler at a public crossing attempted to pass over a railroad track while on foot.A freight train was standing upon a side track, and the traveler passed over this track in front of the freight engine.As he stepped on to the main track a fast passenger train struck him and killed him.In that case there was testimony tending to show that the traveler looked and listened for the approaching train, but that he was prevented from discovering it on account of its rapid approach, and the fact that his vision was obscured by the escaping steam from the freight engine.In that casethis court said: "We are of the opinion that where the evidence shows, as it does in this case, that the deceased was making some effort to discover dangers on the track over which he was attempting to pass, and that the escaping steam brought about a condition which might have prevented his discovering the danger, even though by the exercise of greater care he might have discovered it, it was peculiarly a question for the jury to determine whether under all the circumstances deceased acted as a prudent person, or whether he was guilty of negligence in attempting to cross under those circumstances."

In the case at bar, the freight train had been standing upon the side track for more than ten minutes just before Sullivan was injured, and during that time its engine was standing upon and obstructing the crossing at Main street for a distance of from one-half to three-fourths the width of the street.The freight cars on the side track were between Sullivan and the main track, and obstructed the view towards the south, the direction from which the passenger train came.The freight train was emitting great quantities of steam and making a great noise.There was testimony tending to prove that, after passing in front of the...