St. Louis, I. M. & S. R. Co. v. Tippett

• Decision Date: 01 July 1892
• Citation: 20 S.W. 161,56 Ark. 457
• Parties: RAILWAY COMPANY v. TIPPETT
• Court: Arkansas Supreme Court

20 S.W. 161

56 Ark. 457

RAILWAY COMPANY v. TIPPETT

Supreme Court of Arkansas

July 1, 1892

APPEAL from Craighead Circuit Court, Jonesboro District, JAMES E RIDDICK, Judge.

This suit against the St. Louis, Iron Mountain & Southern Railway Company was instituted by the administratrix of James Tippett, for the benefit of his widow and next of kin. The complaint alleged that, on the 25th day of February, 1889 while James Tippett was going from his house on the west side of defendant's track to his place of business on the east side of said track, he was run over and killed by a locomotive and train of cars belonging to defendant, at a public crossing, just north of the depot in the town of Paragould, Arkansas. It charged negligence on the part of the defendant in running its engine and cars rapidly past said crossing without sounding either bell or whistle, and in having placed an obstruction near the track which cut off the view of the approaching train from the deceased. The prayer of the complaint was for damages in the sum of $ 25,000.

The answer of the defendant denied specifically all the allegations of the complaint, and charged that the accident Was the result of contributory negligence on the part of deceased.

Plaintiff recovered a verdict of $ 1,000. Defendant has appealed. The facts sufficiently appear in the opinion.

Reversed and remanded.

Dodge & Johnson for appellant.

The failure of a traveler at a crossing to stop, look and listen before attempting to cross is evidence of negligence, and if injury results he cannot recover, 16 S.W. 169; Patterson, Ry Acc. Law, 174, 175; 95 U.S. 161; 114 U.S. 615; 12 Q. B. Div. 70, 73; L. R. 3 App. Cases, 1155. In the light of these decisions the court erred in its charge to the jury.

B. H. Crowley for appellee.

Appellant was guilty of negligence in failing to give the signals required by law. Mansf. Dig. sec. 5478; 2 Wood's Ry. Law, p. 1307, note 1, 1310, 1313, 1330. While a traveler is held to due care in stopping, looking and listening, yet he is only bound to look where to do so would aid him in determining whether a train is approaching. 2 Wood's Ry. Law, p. 1310. There is evidence to sustain the verdict.

OPINION

MANSFIELD, J.

Where the view of a railway track is obstructed and the danger of a road-crossing is thus increased, a greater degree of care is required of a traveler than it would be his duty to exercise at a crossing not specially dangerous. Patterson on Railway Accident Law, sec. 177. And, without regard to any special danger at a crossing, this court has held that "a traveler upon the highway is bound to exercise ordinary care and diligence at the intersection of a railway, to ascertain whether a train is approaching, in order to avoid a collision with it." Railway Co. v. Cullen, 54 Ark. 431. In the case cited it was said: "An ordinarily prudent man will use his eyes and ears to apprehend the danger, and, if the circumstances require, he will stop to enable him the better to do so. If the traveler neglects to do what an ordinarily prudent man would do under the circumstances, he is guilty of negligence." An application of these rules to the facts of the present case will determine whether the plaintiff's intestate was guilty of negligence contributing to the loss of his life. He...