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

• Decision Date: 10 February 1913
• Citation: 153 S.W. 817
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. TRANSMEIER.
• Court: Arkansas Supreme Court

153 S.W. 817

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

Supreme Court of Arkansas.

February 10, 1913.

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

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

E. B. Kinsworthy, W. G. Riddick, and R. E. Wiley, all of Little Rock, and W. V. Tompkins, of Prescott, for appellant. Robertson & De Mers, of Little Rock, for appellee.

McCULLOCH, C. J.

This is an action instituted against defendant railway company to recover damages for personal injuries received by the plaintiff while crossing the railroad of defendant at a public street crossing in the city of Argenta, negligence of servants of the company being charged in unnecessarily blowing steam from the engine so as to frighten plaintiff's horse.

Plaintiff is a man well advanced in years, and was employed to work on a farm a few miles out from Argenta. His employer, one Engelberger, in addition to farming, operated a saloon and restaurant in Argenta, and one of plaintiff's duties was to make regular trips to and from Argenta to haul slops and garbage from the restaurant to the farm. He made several trips each week, and was accustomed to cross the railroad at the place where his injury occurred. He drove a mule, which his employer had owned for several years, and which he had been driving regularly. The evidence shows that the mule had always been regarded as a very gentle animal, free from viciousness, and that all the members of the Engelberger family were accustomed to driving it. On the occasion in question, as plaintiff approached the street crossing, he observed a switch engine backing a train of cars slowly over the crossing, and he stopped his mule in about 40 or 50 feet of the crossing in order to wait for the train to pass over. The engine backed the cars over the crossing and stopped in a very short distance of the crossing. The evidence warranted a finding that it stopped in something less than 15 feet of the crossing. There was a flagman there to guard the crossing, and without objection or warning from him the plaintiff started driving across, when steam was suddenly blown from the engine, and the mule took fright and overturned the cart, throwing plaintiff out. He sustained very serious injuries, and the jury awarded damages in the sum of $5,000.

The law of the case is well settled, and the same was declared to the jury in instructions free from any objection. In fact it is not insisted here that any error was committed by the court in instructing the jury.

This court, in decisions in like cases, has laid down the law applicable to the facts in cases of this sort, where injuries have been caused to travelers at crossings from negligence of servants of a railroad in frightening horses by unnecessarily allowing steam to escape or by unnecessary noises. Ry. Co. v. Lewis, 60 Ark. 409, 30 S. W. 765, 1135; Inabnett v. St. L., I. M. & S. Ry. Co., 69 Ark. 130, 61 S. W. 570; C. O. & G. Rd. Co. v. Coker, 77 Ark. 174, 90 S. W. 999; Id., 89 Ark. 270, 116 S. W. 216; Geren v. St. L., I. M. & S. Ry. Co., 99 Ark. 226, 137 S. W. 1100. The doctrine of those cases is that "the duty of railroads is to exercise reasonable and ordinary care to observe travelers about to cross at a highway crossing," and should refrain from doing any heedless or unnecessary act calculated to frighten teams of travelers rightfully approaching crossings.

It is insisted here that the evidence is not sufficient to warrant the finding that steam in unusual quantities was allowed to escape, or that steam was unnecessarily blown out, but that if any steam at all escaped from the engine it was only a necessary incident to the starting of the engine. We think the evidence was sufficient to warrant the finding of negligence. The engine had been brought to a stop within 15 feet of the crossing, and plaintiff started across in full view of the men on the engine. There was no steam escaping at the time he started across, but he states that just as h...