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

• Decision Date: 10 November 1913
• Citation: St. Louis, Iron Mountain & Southern Railway Co. v. Roddy, 161 S.W. 156, 110 Ark. 161 (Ark. 1913)
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. RODDY
• Court: Arkansas Supreme Court

161 S.W. 156

110 Ark. 161

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

Supreme Court of Arkansas

November 10, 1913

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

Appellee instituted this suit as administratrix of W. R. Roddy, her deceased husband, and in her complaint she alleged that her intestate was killed on the 29th day of May, 1911, by the negligent operation of one of appellant's trains at Portland, in this State. The negligence was alleged to have consisted in a failure to keep a lookout, and a failure to give signals at a public street crossing. The answer denied that appellant had been guilty of any negligence in the operation of its train by failure to keep a lookout, but says the injury could not have been avoided by any kind of lookout that might have been kept, and denies that there was any failure to give proper statutory signals for the crossing at which deceased was killed. It was further alleged that deceased's death was due to his contributory negligence in attempting to cross in front of a rapidly approaching train, and that by the exercise of ordinary care, he could have seen the train and have avoided his injury and death and that he could have crossed said track after he went upon it had he hurried across, and that he placed himself in a position where defendant's trainmen could not discover his peril, by keeping a lookout in time to avoid striking him.

The evidence discloses that the railroad runs north and south through the town of Portland, a town of a thousand or more people, and that the crossing where the injury occurred is in the southern part of the town, and one much used, and runs east and west over three tracks which are only four feet eight inches from rail to rail, and seven feet from rail to rail across the space between the tracks. Just to the left of the crossing is a cotton seed house and in front of it, on the house or first track, were several box cars close up to the crossing. On the middle, or the passing track, was a freight train headed south at the time of the injury, and although there is some conflict as to its exact location with reference to the crossing, there was evidence to support a finding that it was standing out over the crossing to a considerable extent. The evidence would also sustain a finding that the freight engine was popping off steam, but we think the evidence does not show that there was such escape of steam as would have enveloped the deceased and prevented him from seeing and from being seen, in fact, a number of witnesses saw the deceased from various angles, and the vision of none was interfered with by the escaping steam. But the train which struck the deceased was approaching from the south, and there is nothing in the evidence to show that escaping steam from the freight engine headed south would have interfered with the view of a train approaching from the south. Deceased came upon the track from the east, and his view to the south was obstructed by the standing box cars until he had crossed over the first or house track, after which there was nothing to prevent him from seeing the passenger train approaching from the south, on the third or main line track, for the tracks in that direction were straight for three or four miles. In the absence of any signals on the part of the approaching train, the jury might well have found that deceased did not hear that train because of the noise made by the escape of steam on the freight engine, but only a failure to look at any time to the south could explain deceased's failure to see the train which killed him. The evidence is conflicting as to whether the passenger engine gave proper signals for the crossing.

A number of instructions were given at the request of both appellant and appellee, and such of them will be set out in the opinion, as it is necessary to discuss.

Judgment reversed and cause remanded.

E. B Kinsworthy, H. S. Powell and T. D. Crawford, for appellant.

1. Where the undisputed evidence shows that the injured person was guilty of contributory negligence in failing, at a public crossing, to look and listen for approaching trains, there can be no recovery, even though the train operatives failed in their duty to give the statutory signals for the crossing. White, Personal Injuries, § 1009. And an instruction which leaves it open to the jury to infer that it would not be negligence to fail to look and listen for approaching trains where such statutory signals are not given, is erroneous. 88 Ark. 524; 78 Ark. 55; 92 Ark. 437. It is well settled that one who attempts to cross a railroad track without looking for an approaching train in plain view, is guilty of such contributory negligence as will prevent recovery. 62 Ark. 156; 61 Ark. 549; 91 Ark. 14; 97 Ark. 438; 101 Ark. 315. See also 69 Ark. 134; 125 Am. St. 876; 64 Mich 93; 96 Ark. 638; 69 Mich. 109; 59 N.Y. 468; 106 Ark. 390; 45 S.E. 817.

2. Where the undisputed testimony shows that a man of ordinary intelligence and in possession of all his faculties, went upon the main track of a railroad in front of a train approaching in plain view, without looking or listening, he was negligent, as a matter of law, and it is error under such evidence to submit the question of his contributory negligence to the jury. 56 Ark. 457; 61 Ark. 549; 62 Ark. 156; 76 Ark. 224; 65 Ark. 235; 69 Ark. 135.

3. The thirteenth instruction was abstract and misleading. Moreover, there was no evidence tending to prove that deceased gave more attention to the north end of the track than to the south end, but that he was not looking in either direction, nor listening.

4. The court erred in giving instructions 15 and 17, and in refusing instructions proposed by appellant, stating the law correctly as it stood before the amendment of the lookout statute in 1911. That amendment had no emergency clause, and did not go into effect until ninety days after the adjournment of the Legislature. 103 Ark. 48.

George & Butler and Mehaffy, Reid & Mehaffy, for appellee.

1. The question presented here is, does this case fall within the exception where it should be left to the jury whether or not the failure to look and listen both was constituted negligence? 69 Ark. 134.

While the duty as between train operatives and a traveler approaching a crossing is reciprocal, yet, rightfully, the modern tendency is to hold railroads to a stricter accountability in discharging their statutory duties; and the traveler is authorized to assume that the railroad company will obey the law. The omission to ring the bell or sound the whistle "is held to be an assurance of safety to one on the highway, and such failure will have an important bearing upon the conduct of the traveler on the crossing, in estimating the amount of care required of him. 2 White on Pers. Injuries, § 954; 96 Ark. 643; 147 S.W. 50.

A railroad company is not merely bound to avoid injuring pedestrians on a public highway after discovering their peril, but must exercise ordinary care in running their trains thereon. It depends upon the circumstances of each case as to what would constitute negligence on the part of the person injured, and if those circumstances are such as that reasonable men might differ as to whether he did or did not exercise ordinary care, the question should be left to the jury. 126 S.W.850.

The presumption is that the injured party exercised due care until the contrary appears by the proof. 48 Ark. 460; 78 Ark. 360; 61 Ark. 549; 78 Ark. 355.

2. The testimony shows that the engineer saw deceased at least 320 feet away, that he knew he was going across the track, and that he evinced no consciousness of the approach of the train. As to whether or not the danger could have been averted after discovering his peril is not in the record; the sole question is, whether the engineer, acting as a reasonably prudent man, under all the circumstances should have assumed that he was in danger, and acted upon that assumption. 151 S.W.255; 147 S.W.50.

OPINION

SMITH, J., (after stating the facts).

The court gave the jury a number of instructions on the question of contributory negligence, but, we think, under the facts here stated, the jury should have been told, as a matter of law, that deceased was guilty of contributory negligence. Circumstances might be such that a traveler at a crossing would be under no absolute duty to look and listen, and a number of cases discuss the exceptions to the rule requiring one to look and listen, and where the traveler comes within any...