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

• Decision Date: 16 October 1897
• Citation: 42 S.W. 406,64 Ark. 332
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SPEARMAN
• Court: Arkansas Supreme Court

42 S.W. 406

64 Ark. 332

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SPEARMAN

Supreme Court of Arkansas

October 16, 1897

Appeal from Columbia Circuit Court, CHARLES W. SMITH, Judge.

Judgment reversed and cause remanded for new trial.

Dodge & Johnson and J. E. Williams, for appellants.

It was error for the trial court to instruct the jury that not the law, but their own judgment, must supply the criterion as to what a reasonable man should do under the given circumstances. This is something which the law defines. Patt. Ry. Acc. Law, 174, 175; 85 U.S. 161; 12 Q. B. Div. 70, 73; L R. 3 App. Cas. 1155; 11 Q. B. Div. 213; 35 S.W. 1070; 4 C. C A. 350; 16 S.W. 909; 73 Pa.St. 504; 13 Wright (Pa.), 60; 92 Pa.St. 336; 102 Pa.St. 425, 49 A. & E. R. Cas. 334; Beach Con. Neg. 9; 54 Ark. 431; 56 Ark. 459; 29 N.Y. 324; 9 F. 972; 49 N.W. 334; 15 So. 127; 61 F. 591; 8 O. C. Ct. 41; 160 Pa.St. 117; 24 S.W. 1090; 73 Hun, 32; 13 So. 944; 97 Mich. 240; 56 N.W. 240; 57 N.W. 661; 29 A. 678; 29 N. Y. St. 1008; 58 N.W. 314; 96 Mich. 327; 27 S.W. 827; 60 N.W. 57; 29 S.W. 928; 28 id. 520; 27 id. 827; 42 N.J. 180; 21 A. & E. R. Cas. 226; 74 Mo. 603; 73 Mo. 163; 10 A. & E. R. Cas. 305; Pierce, Rys. 342, 343; 19 A. & E. R. Cas. 366; id. 358; id. 342; 23 id. 274; id. 317; 37 id. 516; id. 508; 32 id. 118; 39 id. 612; 55 id. 256; 25 Mich. 290; 59 id. 257; 77 Me. 85; Shearman & Redfield, Neg. 448; 106 N.Y. 369; 17 Ore. 5; 38 Tex. 873; 38 Minn. 108; 30 id. 432; 85 Ia. 678; 96 Mich. 327; 35 N.W. 971; 97 Mich. 240; 126 Pa.St. 559; 23 F. 738; 26 id. 22; 54 F. 301; 61 F. 591; 59 N.Y. 651; 75 id. 273; 59 id. 468; 47 id. 400; 40 id. 34; 59 id. 469; 24 O. St. 670; 40 id. 338; 157 Mass. 336; 10 Allen, 532; 158 Mass. 8; 105 Mo. 371; 113 id. 1; 105 N.C. 140; 65 Smith 706; 46 Ill.App. 446; 97 Mich. 240; 90 id. 594; 50 Kas. 16; 102 Pa.St. 425; 55 A. & E. R. Cas. 153; 130 Pa.St. 380; 70 Wis. 216; 85 Ia. 678; 57 F. 921; 95 U.S. 697; 114 id. 615; 26 N.E. 741; 149 Mass. 127; 31 F. 531; 103 F. 31; 70 Me. 346; 124 Pa.St. 572; 65 N.W. 447; 73 F. 79; 75 id. 644; 36 At. 400; 26 S.E. 349; 65 N.W. 447; 36 N.Y.S. 83. It was error to instruct the jury that, even if the appellee did not exercise the care of an ordinarily prudent man, yet he could recover if it appeared that appellants could have averted the accident, "unless it further appears that appellee was guilty of contributory negligence." 35 S.W. 216; 34 S.W. 213. It was error to refuse to instruct the jury that if appellee was familiar with the crossing and its unwatched condition, this was a proper circumstance for them to consider. 36 N.Y.S. 98; 76 F. 101.

Cockrill & Cockrill, H. P. Smeade, and Kirby & Carter, for appellee.

The jury are the judges as to the criterion of what a reasonable and prudent man would do under the circumstances. 144 U.S. 408. There is no error in the seventh instruction given for the plaintiff. Evidence of knowledge of plaintiff of the unwatched condition of crossing at time of accident is inadmissible as being evidence of a custom to violate the law. 136 U.S. 408. An instruction to the effect that it should be considered by the jury is based on an isolated fact, and hence misleading, and properly refused by the court. 37 Ark. 333; 52 id. 180; 136 U.S. 408; 29 S.W. 79; 144 S.W. 408; 36 S.W. 900; 26 id. 509; 30 id. 902; 23 id. 446; 21 id. 589; 113 U.S. 494; 99 id. 578; 9 Peters, 292; Thompson, Tr. § 2330; 31 S.W. 89; 1 Mo.App. 346; 19 S.E. 992; 1 Mo.App. 195; 17 So. 336; 59 Ill.App. 228; Appellant was not prejudiced by the refusal of the instruction.

OPINION

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, Arkansas, 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 the plaintiff 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 appellant 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 on to the railway track, and that the railway employees 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 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." In the opinion of the court this is obnoxious to criticism. The law fixes the standard for the conduct of reasonable, prudent and cautious men under the circumstances of a case of this kind, and it is the duty of the court to instruct the jury as to the law, and the duty of the jury to regard the instructions of the court, and take them as the law of the case. Were it otherwise, every jury would be at liberty to fix its own standard of negligence or ordinary care, without regard to the instructions of the court as to what might be diligence or negligence.

If this part of the instruction were correct, under the construction that might be placed upon it, it would be idle for the court to tell the jury that, in approaching a crossing over a railroad track, ordinary prudence requires of a traveler intending to cross the track that he should use his senses, that he should look and listen for the approach of an engine, that a railway track is a constant reminder of danger, etc., which the courts are constantly doing, and which the law requires they shall do in proper cases. As given, it is ambiguous and liable to be misunderstood. We are persuaded that the learned judge who gave did not intend it to have the construction which seems to us the reasonable one to put upon it.

If the court meant that, the facts being proved, and the law having been given by the court, it was the province of the jury to determine the question of negligence or contributory negligence for themselves, this would have been correct. We think this is what the court meant. We are aware that an instruction in the same language was approved by the Supreme Court of the United States, in the connection in which it was given, in the case of the Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 36 L.Ed. 485, 12 S.Ct. 679. But we think the circumstances of that case were different from the circumstances here. While we do not approve this instruction, we cannot say that we would reverse this case on account of it alone.

The proviso of the seventh instruction is contradictory to the first part of the instruction, and the instruction, as framed, is calculated to confuse and mislead a jury. This seems patent upon the face of the instruction. The court in the first part of the instruction told the jury: "Even if you should find from the testimony that deceased did not exercise as much care in approaching defendant's crossing as an ordinarily prudent man should have done," which must have meant such care as would exempt him from...