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

• Citation: 33 S.W. 1070,61 Ark. 549
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MARTIN
• Decision Date: 18 January 1896
• Court: Arkansas Supreme Court

33 S.W. 1070

61 Ark. 549

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

Supreme Court of Arkansas

January 18, 1896

Appeal from Cross Circuit Court, JAMES E. RIDDICK, Judge.

Reversed and remanded.

Dodge & Johnson, for appellants.

1. The verdict was without evidence to sustain it. The evidence is that deceased never looked or listened before or after going on the tracks.

2. The verdict is contrary to law. A person going upon the tracks of a railway company must use due precautions by looking and listening. No neglect of the company will excuse this duty of using both eyes and ears. 54 Ark. 434; 24 A. & E. R. Cas 124; 56 Ark. 459; 29 Mich. 274; 2 Binney (Pa.) 159. He must make vigilant use of his senses to detect the approach of trains. 57 N.Y. S. R. 7; 47 N.Y. 400; 105 Mo. 371; 113 Mo. 1; 105 N.C. 140. He is not excused by the assumption that the train men will give proper signals of approach. 86 N.Y. 616; 33 Kas. 427; 51 Mo.App. 562; 42 N.J.L. 180; 61 Tex. 503; 46 F. 343; 39 A. & E. R. Cas. 612; 102 Pa. 425; 81 Ala. 185; 70 Wis. 216; 69 Mich. 109; 81 Ala. 177; 103 Ind. 31; 128 id 138; 16 N.Y. 909; 34 W.Va. 538; 17 Or. 5; 57 F. 921.

Block & Sullivan, for appellee.

1. The verdict is supported by the evidence. When certain witnesses testify that signals were given, and certain others that they did not hear them, and could have heard them had they been given, the question as to whether or not they were given is one for the jury. 101 N.Y. 419; 75 id. 320; 36 id. 132; 57 Wis. 59. Even to concede that the statutory signals were given, they were certainly rendered nugatory and of no avail by the proximity of other moving trains, which is equal negligence on part of appellant. 101 Ind. 522; 51 Am. Rep 761. The evidence shows that appellant's employees backed a train over the principal crossing of a populous town on a dark night, without the customary signals and with no light on the forward end of the train. This will support a finding of want of ordinary care. 52 N.Y. 215; 88 id. 13; 20 N.W. 93.

2. The burden of proving contributory negligence was on the appellant, and, if there is no proof at all on the subject, the presumption of due care obtains. 46 Ark. 423; Ib. 182; 46 id. 460.

3. A foot passenger is not required to stop before going upon the tracks, except when it will better enable him to use his senses of sight or hearing. 54 Ark. 431; 79 N.Y. 73; 71 id. 285; 9 N.W. 575.

4. The track, if visible, may have been a warning to deceased to look and listen for approaching trains, and, having thus discovered nothing, he had the right to proceed, on the theory that the railway company would use the ordinary precautions to show the approach of their trains. 56 Ark. 459; 17 Or. 5; 47 Pa. 51, 244; 86 Am. Dec. 541.

5. Contributory negligence is a question of fact for the jury to determine from all the circumstances and surroundings. 52 Ark. 368; 57 id. 429; 88 N.Y. 13; 79 id. 72; 58 id. 451; 92 Mass. 189; 149 U.S. 43-5; 17 Wall. 657; 135 U.S. 554; 139 id. 469; 144 id. 408; 29 F. 489; 60 id. 999.

6. It is true that a traveler on a highway will not be excused from due diligence by the assumption that the trainmen will give the proper signals, but it is also true that where looking and listening can and does discover nothing, the traveler has a right to expect that the company would perform its duty. 56 Ark. 49; 17 Ore. 5.

7. Instruction 3 is approved by this court, and sustained by authority. 42 Ark. 321; 36 id. 41; 35 id. 614; 11 N.W. 67; 9 id. 475; 52 N.Y. 215; 20 N.W. 93; 70 Tex. 126; 8 Am. St. 582.

8. The fourth instruction is simply a statement of the duty enjoined upon the appellant by statute. 53 Ark. 201; Sand. & H. Dig. sec. 6196.

9. Instruction 8 is sustained by 54 Ark. 431; 88 N.Y. 13; 79 id. 72; 78 id. 518; 92 Mass. 189; 20 N.W. 93; 10 id. 268; 7 N.E. 801.

OPINION

WOOD, J.

This suit is for damages resultant it is alleged, from the negligent killing of A. S. Martin by the appellant. The suit was brought for the benefit of the estate, and of the widow and next of kin. The defense was a denial of negligence, and a plea of contributory negligence. The trial resulted in a judgment for seven thousand dollars, which this appeal seeks to reverse.

The negligence of appellant is established by proof which is sufficient, and the judgment must be affirmed, unless the deceased was guilty of contributory negligence, which is the only question we need discuss. Deceased was killed where the railway crosses Union street in the town of Wynne, as shown by a rude plat, which we clip from brief of counsel and append, to make the testimony as to location more intelligible.

The three tracks at Union street were six or eight feet apart. Deceased and the witness, his companion, were crossing over the main line at about seven or eight o'clock at night. The road was rough, and the night very dark. The witness said to deceased, just before he came to a stand, "If you are not acquainted with the road, let me take your arm;" and witness took deceased's left arm with his right. A local going south was on the east track and lacked about a box car, or half a box car and caboose, of passing the crossing when they walked upon the track of the main line. They "halted a second or moment," until the train passed the crossing; and, "while standing there talking," the train backing from the south knocked witness and deceased from the track, running over and injuring deceased, from which injuries he died about three o'clock next morning, after suffering intensely. Witness was looking toward the south, the direction whence the train that struck them was coming, and whither the passing train was going. Witness says he did not see the train that struck them until just a moment before, and for the reason that it was so dark, and that there was no light [SEE MAP IN ORIGINAL.] on the caboose. Witness was asked, "Did you listen for any trains while you were there?" and replied, "I do not know that we listened, and the train was passing right in front of us. I do not know that we particularly listened for the train. I do not recollect about our listening for the approach of a train." He further said: "Had we listened, I do not think we could have heard the train that was coming from the south, because of the one moving right in front of us. The train that struck us was approaching very stealthily. It made very little noise." Witness was then asked, "How was the one that was going south?" and replied, "I do not know. It was just making ordinary noise. It was not running at a very high rate of speed; probably three or four miles an hour. They were pulling out of the switch." Witness did not hear any bell ringing on the train that was pulling out. Witness was then asked at what rate the train was moving that struck them, and replied: "I do not know that. I should judge from the distance it knocked me, it must have been going at least eight miles an hour. I do not know, of course. I could not tell anything about that, because it just bumped up against us. I should think, though, about six or eight miles an hour." Witness indicated, by the distance to a certain object which he pointed out, that the train knocked them about fifteen feet.

It was shown by this witness, who was a physician, that he had examined the deceased, Dr. Martin, that day, for life insurance, and that deceased's hearing was good, while witness' hearing was defective, both ears being affected. The crossing where Dr. Martin was killed was in the main part of the city, and people were constantly passing over it. Two locals, running from Knoble to Wynne, did all their switching at Wynne. This occurred every day. The train had been doing switching about two hours when the accident took place.

This was all the evidence bearing upon the question of contributory negligence. A dispassionate view of it, we think, can lead to but one conclusion, viz., had the deceased made that use of his senses which the law requires of one before going upon, or while crossing over, a railway track, his death would not have occurred, notwithstanding the negligence of the company.

As to contributory negligence.

We make this statement, knowing the settled law to be that the question of whether there is negligence or contributory negligence is always for the jury, unless the facts are undisputed, and susceptible of but one conclusion. Richmond, etc., R. Co. v. Powers, 149 U.S. 43, 37 L.Ed. 642, 13 S.Ct. 748; Grand Trunk R. Co. v. Ives, 144 U.S. 408, 36 L.Ed. 485, 12 S.Ct. 679; Delaware, etc., R. Co. v. Converse, 139 U.S. 469, 35 L.Ed. 213, 11 S.Ct. 569; Washington, etc., R. Co. v. McDade, 135 U.S. 554, 34 L.Ed. 235, 10 S.Ct. 1044; Kansas City, etc., R. Co. v. Kirksey, 60 F. 999; Hathaway v. East Tenn., etc., R. Co., 29 F. 489; Seefeld v. Ry. Co. 70 Wis. 216, 35 N.W. 278; Hendricken v. Meadows, 154 Mass. 599, 28 N.E. 1054; Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; 2 Wood on Railroads, 1458, and cases cited; Beach, Contrib. Neg. 450-51; Thompson, Neg. 1239; Artz v. Ry. Co. 34 Iowa 153.

It is equally as well settled, where the facts are undisputed, and there could not, in reason and fairness, be any difference of opinion as to the conclusion to be drawn from them, that the question of negligence or contributory negligence is one of law. Grand Trunk R. Co. v. Ives supra; Seefeld v. Ry. Co. supra; Mann v. Belt Ry. Co. 128 Ind. 138, 26 N.E. 819; Mynning v. Ry. Co. 28 A. & E. Ry. Cases 665; Reading, etc., R. Co. v. Ritchie, 102 Pa. 425; Apsey v. Ry. Co. 83 Mich. 440; Emry v. Ry. Co. 109 N.C. 589; 2 Wood, Railroads, 1458, 14 S.E. 352, and cases cited; Straugh v. Ry. Co. 65 Mich. 706; Chicago, etc., Ry. Co. v. White, 46 Ill.App. 446; Gardner v. Ry. Co. 97 Mich. 240; Grippen v. Ry....