St. Louis, I. M. & S. Ry. Co. v. Hudson
| Decision Date | 04 May 1908 |
| Citation | 110 S.W. 590 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. HUDSON. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Miller County; J. M. Carter, Judge.
Action by Fannie Hudson against the St. Louis, Iron Mountain & Southern Railway Company. From a judgement for plaintiff, defendant appeals. Affirmed.
T. M. Mehaffy and J. E. Williams, for appellant. L. A. Byrne, for appellee.
Appellee was injured while attempting to cross the railroad tracks of appellant in the yard at Texarkana, and sued for and recovered damages. She was crossing the tracks along a path which it is claimed had been continuously used by the public generally by permission of the railway company for a number of years, and she attempted to pass through an opening between the ends of two cars, when a switch engine backing with a string of cars "kicked" a car backward against one of the cars near which appellee was passing, causing the car to strike her, knock her down and inflict serious injury. She testified that she looked before she started across the track through the opening, but could not see an engine or any moving cars. There was evidence also to the effect that the railroad employés kept no lookout, and did not sound any signal by bell or whistle. The evidence is conflicting upon every material point, but there was evidence sufficient to warrant the jury in finding the facts as stated above. This being true, it cannot be said that the evidence was insufficient to justify a verdict for damages.
Counsel contend that appellee does not clear herself of the charge of contributory negligence because she fails to state that she listened as well as looked for approaching cars. She does not say that she did not listen or that she stopped her ears so that she could not hear. She merely states that she looked for engines or moving cars. Now, there is nothing in her testimony which would warrant the jury in finding that she did not listen as well as look, or that anything prevented her from hearing the noise of approaching engine or cars if such noises had been made. She approached the track with her sense of hearing unimpaired, so far as the evidence discloses, and looked for the approach of engines or cars. The rule stated in Railway v. Martin, 61 Ark. 549, 33 S. W. 1070, does not apply to the facts of this case.
Objection is made to the ruling of the trial court in allowing evidence to be introduced showing that many years before the injury occurred...
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