St. Louis, Iron Mountain & Southern Railway Co. v. Boback

• Decision Date: 13 June 1903
• Citation: St. Louis, Iron Mountain & Southern Railway Co. v. Boback, 75 S.W. 473, 71 Ark. 427 (Ark. 1903)
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. BOBACK
• Court: Arkansas Supreme Court

75 S.W. 473

71 Ark. 427

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. BOBACK

Supreme Court of Arkansas

June 13, 1903

Appeal from Pope Circuit Court, WM. L. MOOSE, Judge.

Affirmed.

Judgment affirmed.

Dodge & Johnson, Oscar L. Miles, for appellant.

The crossing was not a public, one. Sand. & H. Dig. § 6196. Liability of railway companies for injury occasioned by frightening of horses. 56 Ark. 387; 60 Ark. 409; Elliot Railroads, § 1264; 81 Tex. 1; 85 Wis. 570; 74 Wis. 704; 89 Wis. 79; 134 Ind. 16; 98 N.C. 247. No negligence is shown in the use of the steam engine, cars or railroad. 51 Cal 605; 14 S.E. 616; 69 Me. 208; 110 Mass. 222; 56 Conn. 44. Ordinary care is required in the operator of the train. 140 Mass. 79. Appellee was guilty of contributory negligence. 78 Pa.St. 219; 13 Ind. 87.

A. S McKennon, for appellee.

A traveler in approaching a crossing is required to exercise only ordinary care. 62 Ark. 156; 88 N.Y. 13; 2 Wood, Railways, 1527. Appellee was not guilty of contributory negligence. 12 S.W. 1121.

OPINION

RIDDICK, J.

This is an action brought by Mary Boback against the defendant railway company to recover ten thousand dollars by way of damages for injuries which she claims to have sustained through the negligence of the employes of defendant while they were operating one of its trains. On the day of the accident the plaintiff, accompanied by a little girl only a few years of age, was traveling in a buggy drawn by one horse from her home to the village of Knoxville. The public highway along which she was traveling crossed the railway track between her home and Knoxville. As she got on the track at the crossing, a train, which, on account of a curve and a cut through a hill, could not be seen further than a hundred yards from the crossing, came up and frightened the. horse. The horse and buggy passed over the track, and plaintiff, it seems, to prevent the frightened horse from running away jumped out of the buggy, and caught hold of the head of the horse. But she failed to restrain him. He threw her down, and ran away. The wheels of the buggy passed over her, the child was thrown out, and the buggy overturned.

The negligence which plaintiff alleged, and to which she attributs her injuries, was the failure of the employees in charge of the train to give the statutory signals for the approach to the crossing by ringing a bell or sounding a whistle. Plaintiff testified on the trial that before going on the crossing she stopped and looked and listened for trains, but heard none; that when she got on the crossing she saw the train coming; that her horse became frightened, and she did her best to get it off the track, but was so badly frightened she did not remember how she did so. When she became conscious, she was lying on the ground badly injured, the buggy was overturned, and she did not even know how she got out of the buggy. There was also evidence to the effect that no whistle or other signal of the approach of the train for the crossing was given. Plaintiff further testified that, if she had heard the train or the signal, she would not have gone on the crossing, but would have turned away, and got out of the buggy. Mrs. Boback was severely injured, and on the trial she recovered a judgment for one thousand dollars. The company appealed, and asks us to reverse the judgment for reasons which we will now notice.

In the first place counsel for the defendant contends that this is an effort to hold the railway company responsible for an injury that resulted by reason of the fright of a horse "at a whistle which was not sounded and a bell that was not rung." "In other words," says the counsel, "the court is called upon to say in this case that the company must respond to the plaintiff in damages because her horse took fright at the very stillness of the engineer on his engine." Having adopted this as the basis upon which the action of the plaintiff rested, it is not surprising to find that counsel for the defendant asked the court on the trial to instruct the jury that, in order to recover, the plaintiff must show that "the failure of the defendant to ring the bell or sound the whistle at the public crossing caused the horse to take fright and run away." That is to say, as we understand the contention of counsel, a traveler who claims damages for an injury which he alleges resulted from a runaway at a railroad crossing caused by reason of the failure of the employees of the company to give the statutory signals must, in order to recover, show that the horse was frightened, not at the train, but at the failure to give the statutory signals. To comply with this rule, the traveler would have to show that his horse was acquainted with the fact that trains were required or accustomed to give such signals for crossings, and became alarmed on noticing that the train in question failed to give them.

Horses are very intelligent animals, but we doubt if they are quite as intelligent as this instruction asked by counsel assumes them to be. A rule of that kind would put an undue burden on plaintiff, and, if adopted, would practically relieve railway companies from liability to damages in such cases.

The signals for crossings are required, not for the horse, but for the driver of the horse, in order that he may have notice that a train is approaching, and may be thus warned to keep of the crossing. Horses often become frightened at trains, even though the trains be operated with due care, and one object of the statute was to warn persons about to pass crossings with horses, so that they may make due preparation to guard against the consequences of such fright.

The question then was, not whether the horse became frightened at the failure to give signals, but whether the failure to give the signals led plaintiff into a more dangerous position than she would otherwise have occupied, and thus caused the injury of which she complains. The instruction asked, we think, would have been altogether misleading, and was properly refused.

Another instruction which the defendant asked, and which the court gave, was, we think, also incorrect and misleading. The objectionable part of this instruction was as follows, to-wit: "If you find from the evidence that the plaintiff, while driving along the public highway and near a public crossing over defendant's tracks, discovered the approach of one of defendant's trains, and, realizing that her horse might take fright at such train, got out of the buggy, and went to the horse's head, and took hold of the bridle, and attempted to hold the horse, and prevent it from running away, and that, while so attempting to hold the horse, the horse did become frightened at such train, and broke away from the plaintiff, and threw her down, and dragged the buggy over her, and thereby injured her, then your verdict should be for the defendant, for it was the duty of the plaintiff to prefer her own personal safety to that of the horse and buggy, and she had no right to increase the liability of the defendant by involving her own life and limb in order to save the value of the horse and buggy."

It will be noticed that this instruction made it contributory negligence per se for the plaintiff to undertake to prevent the horse from running away by catching hold of the bridle near his head. Under this instruction, it would have been the duty of plaintiff to remain in the buggy, or, having got out of it, to abandon any attempt to restrain the horse, or at lease to keep away from the front of the horse.

Now, it is a well known fact that a frightened horse can be more easily restrained by catching hold of the bridle near his mouth or head than by holding to the end of the reins. Prudent people, when they have opportunity to do so, often take this means of restraining frightened horses, and we have never heard before that it is as a matter of law negligence to attempt to do so. But, if we should concede that the statement in this instruction that plaintiff was bound to prefer her own safety to that of the horse and buggy was correct in some cases, yet even then the fact that the infant daughter of plaintiff was in the buggy to which the frightened horse was hitched justified her in using every exertion, and even to endanger her own person, in order to restrain him and save the child from injury. But we are well satisfied that it can not be said, as a matter of law, that plaintiff was guilty of contributory negligence in catching hold of the bridle at the head of the horse in the endeavor to restrain him. On the contrary, if she, after getting out of the buggy had abandoned it, and made no attempt to restrain the frightened horse, and afterwards sued for the injury to her buggy and child, we feel very certain that she would have been met by the charge of contributory negligence for failing to make any attempt to prevent the injury, and we are by no means sure that under such circumstances there would not be good grounds for such a defense.

The only excuse that we can see for giving that instruction is that the manner of the injury, as alleged in the complaint is a little vague, so that the court may have been of the opinion that plaintiff alleged that she was injured by being thrown from the buggy, and for that reason held that she could not recover if she was already out of the buggy, when the horse ran away. But the complaint does not allege that she was thrown from the buggy. It alleges that her horse "became frightened, ran away, overturning the buggy and throwing her violently to the ground, by which fall she was severely injured." So we do not think the instruction was correct, even if based on that theory, but the language of the instruction shows that it was based on the theory that pla...