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

• Decision Date: 26 January 1914
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. KIMBRELL
• Court: Arkansas Supreme Court

163 S.W. 516

111 Ark. 134

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

Supreme Court of Arkansas

January 26, 1914

Appeal from White Circuit Court; Hance N. Hutton, Judge; reversed.

Judgment reversed and cause remanded.

E. B Kinsworthy, P. R. Andrews and W. G. Riddick, for appellant.

1. In support of the proposition that the evidence does not sustain the verdict, counsel say that there is no question under the testimony but that the engineer complied with the statute and fully discharged his duty with respect to ringing the bell and sounding the whistle (Kirby's Dig., § 6595); but that appellee, while he claims that he kept the lookout required for his own safety, and listened for approaching trains, is contradicted by every circumstance in the case. The situation presented here is one where the plaintiff failed to hear and see what he must have heard and seen had he listened and looked. 74 Ark. 376; 105 Ark. 294.

2. The instructions given by the court were abstract and misleading. Especially No. 6. There is no evidence on which to base it. 63 Ark. 177; 77 Ark. 20; 80 Ark. 261; 88 Ark. 176; Id. 231; 96 Ark. 614; 90 Ark. 278.

S Brundidge and J. W. House, for appellee.

1. There was sufficient substantial evidence to send the case to the jury, and the evidence is legally sufficient to sustain their verdict. 74 Ark. 376; 105 Ark. 269; 97 Ark. 405.

2. No error in the instructions given. The sixth was justified by the evidence and the theory upon which appellant predicated its principal defense. 77 Ark. 64; 89 Ark. 518; Id. 410; 92 Ark. 6.

OPINION

MCCULLOCH, C. J.

The plaintiff, J. W. Kimbrell, was struck by one of the passenger trains of the defendant, St. Louis, Iron Mountain & Southern Railway Company, at a public crossing at Beebe, White County, Arkansas, and he instituted this action to recover compensation for his injuries.

Plaintiff was a country merchant, residing some distance from Beebe, and came to Beebe in his two-horse wagon to get a load of groceries. After loading the wagon with his purchases, he drove across the railroad at a street crossing near the station to go to a lumber yard to get some tiling, and it was on his return trip across the track that the train struck him. The railroad at that point runs nearly north and south and the street crosses at right-angles. There are three tracks, about eight feet apart--a sidetrack and double main-line tracks. The passenger station is about 200 feet south of the crossing where plaintiff was injured, and the freight depot is situated about 381 feet south. There is another street crossing between the freight depot and the passenger station. The sidetrack was on the east of the main tracks, the side from which plaintiff was coming when he went on the track, and there were four or five box cars along on the sidetrack, the nearest one to the crossing being about ten feet distant. These box cars and the freight station obscured the view of the track toward the south from a point near the east side of the track.

According to the testimony adduced by plaintiff, he was sitting on the front end of his wagon and drove up to a point within a short distance of the track--from ten to twenty feet, according to the varying statements of the witnesses. He testified that he brought his team to a full stop and looked up and down the track and listened for approaching trains, and, failing to discover any, he proceeded to drive across, when the train struck his wagon, threw him out and inflicted serious injuries.

The train which struck plaintiff was the fast mail train coming from the south. Its regular schedule was about thirty-six miles an hour, and the speed at that time varied, according to the statements of different witnesses, from thirty to sixty miles per hour.

There was evidence adduced by the plaintiff which warranted the statement that the train was running at an unusually high rate of speed.

Plaintiff's testimony also tended to show that no signals of any kind were given by bell or whistle until just a moment before the train struck plaintiff.

Negligence on the part of the company is alleged (1) in leaving empty box cars on the sidetrack, which prevented travelers from discovering the approach of trains; (2) in running the train at a high and unusual rate of speed through the town of Beebe; (3) in failing to give signals for the crossing, and (4) in failing to keep a flagman or watchman at the crossing.

The defendant in its answer denied all the allegations of negligence, and alleged that the injury was caused by plaintiff's negligence in driving on the track without taking the necessary precautions to discover the approach of the train.

The jury awarded damages to the plaintiff, and defendant has appealed.

It is strenuously insisted, in the first place, that the evidence is not sufficient to warrant a verdict in plaintiff's favor; but, after considering it fully, we are of the opinion that a case was made for the jury. There is a sharp conflict in the testimony, and it is unnecessary for us to decide where the preponderance lies; but it is sufficient to say that there was substantial testimony to the effect that the plaintiff stopped his team and looked and listened for approaching trains and that he was guilty of no act of negligence which barred the recovery of damages. The testimony is also sufficient to warrant a finding that none of the statutory signals was given from the approaching train and that those in charge of the train were guilty of negligence in this respect which caused the plaintiff's injury. The evidence also warranted a finding that the train was run at an unusually high rate of speed. The unusual speed of the train was a proper element of consideration under the circumstances of this case, though the speed of the train, alone, would not be sufficient to establish liability if all other precautions were observed by those in charge of the train. In Ford v. St. Louis, Iron Mountain & Southern Ry. Co., 66 Ark. 363, Judge RIDDICK, speaking for the court, said:

"Public convenience and necessity of course require that railroad trains should run at a high rate of speed, and the mere fact that a train was running fast at the time of striking an animal is no proof of negligence on the part of the company, when unconnected with other facts tending to show that it was negligence under the circumstances to run at such speed; for trains are expected to run fast. But when the accident happens in a city or populous town, the circumstances then may be such that the jury would be justified in finding the company guilty of negligence in running its trains at a great and unusual rate of speed, and this is certainly true when the statutory signals are not sounded for the different street crossings."

No instruction was given by the court, either at the request of plaintiff or on its own motion, directly on the subject of the speed of the train, and the only mention of that subject was in an instruction given by the court at defendant's request; so we have nothing on this appeal to...