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

• Decision Date: 16 October 1897
• Citation: 42 S.W. 406
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. SPEARMAN.
• Court: Arkansas Supreme Court

Page 406

42 S.W. 406

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

Supreme Court of Arkansas.

October 16, 1897.

Appeal from circuit court, Columbia county; Charles W. Smith, Judge.

Action by W. C. Spearman, administrator of the estate of Martin W. Leverett, deceased, against the St. Louis, Iron Mountain & Southern Railway Company, to recover for the death of plaintiff's intestate, caused by defendant's negligence. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Dodge & Johnson and J. E. Williams, for appellant. H. P. Smead, Kirby & Carter, and Cockrill & Cockrill, for appellee.

HUGHES, J.

While attempting to cross the railway track of the appellant at a public crossing over the same on College Hill street, in the city of Texarkana, Ark., the appellee's intestate, Martin Leverett, driving a milk wagon, was run over and killed by a switch engine of appellant that was running over said crossing. The appellee sued for damages, claiming in one count $10,000 for the estate, and in a second count $25,000 for the widow and next of kin. The complaint charged that the appellant was negligent in not giving signals for the crossing, and that it was negligent in having the gates across the public highway open at the time, contrary to an ordinance of the city of Texarkana requiring the gates to be closed while engines were passing over the crossing. The answer of the railway company specifically denied each allegation of the complaint, and charged that plaintiff's intestate was guilty of contributory negligence. The jury returned a verdict of $5,000 for the estate and $12,500 for the widow and next of kin. The court below caused a remittitur of $1,500 to be entered upon the verdict in favor of the estate, and of $5,000 upon the verdict for the widow and next of kin. The appelant filed a motion for a new trial, which was overruled, and it appealed to this court.

The evidence tended to show that the gates over the crossing were open at the time the deceased, Martin Leverett, drove onto the railway track, and that the railway employés were neither ringing the bell nor sounding the whistle as the engine approached the crossing, and that an ordinance of the city of Texarkana required that the gates should be closed when an engine was passing the crossing. Over the objections of defendant, the court gave to the jury the following instructions: "(1) The court instructs you that negligence on the part of either the railroad company or the deceased might be defined to be the failure to do what reasonable and prudent persons would ordinarily have done under the circumstances of the situation, or the doing what reasonable and prudent persons, under existing circumstances, would not have done; and the question of negligence, or want of ordinary care and prudence, is one for you to decide. You fix the standard for reasonable, prudent, and cautious men, under the circumstances of the case, as you find them, according to your judgment and experience of what that class of men do under these circumstances, and then test the conduct involved, and try it by that standard; and neither the judge who tries the case, nor any other person, can supply you with the criterion of judgment by any opinion he may have on that subject." "(7) Even should you find from the testimony that deceased did not exercise as much care in approaching defendant's crossing as an ordinarily prudent man would have done, yet you are instructed that it was the duty of defendant's servants to keep a lookout on approaching the crossing; and if you find that, by so doing, defendant could have discovered deceased's perilous position in time to have avoided the injury, and failed to do so, you will find for plaintiff, provided the plaintiff was not guilty of contributory negligence."

In the latter clause of the first instruction the court tells the jury: "You fix the standard for reasonable, prudent, and cautious men, under the circumstances of the case, as you find them, according to your judgment and...