St. Louis, Iron Mountain & Southern Railway Company v. Prince

• Citation: 142 S.W. 499,101 Ark. 315
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PRINCE
• Decision Date: 18 December 1911
• Court: Arkansas Supreme Court

142 S.W. 499

101 Ark. 315

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

Supreme Court of Arkansas

December 18, 1911

Appeal from Hempstead Circuit Court; Jacob M. Carter, Judge affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, W. V. Tompkins and James H Stevenson, for appellant.

1. Appellant's own testimony convicts him of contributory negligence. Before driving upon the track on which the injury occurred, a view of which, he says, was obstructed from the time he came upon the first track by the string of dead cars extending up to the street crossing, he should at least have checked his team and looked up and down the track which had been shut off from view. If he went upon this track without looking and listening, he can not recover, notwithstanding any primary negligence on the part of appellant. 2 White, Pers. Inj. §§ 1008, 1009; 86 Mo. 457; 88 Mo. 534, 547, 548; 129 Mo. 405, 418, 419; 50 Ind. 65; 56 S.E. 432; 131 Ind. 492, 31 N.E. 585. Where a traveller is going across a number of tracks by one crossing, and his view of one or several of them is obstructed at the point of entrance of the crossing, he should stop as often as the performance of an efficient looking and listening makes it necessary under the circumstances. 2 Thompson, Neg. §§ 1670, 1646; 2 White, Pers. Inj. §§ 1020, 1016; Id. pp. 1491, 1492, note; 98 Mo. 272; 94 Va. 460, 475, 36 S.E. 834; 17 N.Y.S. 400; 66 N.J. 677, 679, 50 A. 677.

2. The fifth instruction given at appellee's request is abstract. It is not supported by any evidence having the slightest tendency to show that the deceased at any time "looked and listened before driving upon the track," etc. This language is misleading in that it does not indicate in any way what track is referred to. The use of the expression "before driving upon the track" is misleading because it would indicate to the jury that the duty to look and listen was not a continuing one, but was fully performed when the travellers surveyed the situation before driving upon the first track. The theory of the instruction is contrary to appellee's own testimony.

3. The tenth instruction was erroneous because it did not state to the jury that no damages could be recovered for pain and suffering on the part of the deceased except from the time of the injury to the time she became unconscious. 68 Ark. 1, 3, 4, 7; 84 Ark. 241, 247; 59 Ark 215.

Steve Carrigan and William H. Arnold, for appellee.

1. Under the state of facts developed by the evidence in this case, it was not the province of the court to say as a matter of law that appellee and the deceased were guilty of contributory negligence, but it was a question for the jury to determine. 76 Ark. 227; 149 U.S. 43; 134 S.W. 315; 90 Ark. 19; 78 Ark. 520; 79 Ark. 241; 61 Ark. 558; 62 Ark. 159; 45 C. C. A. 21; 76 Ark. 377; 132 S.W. 992; 136 S.W. 279.

2. There is no error in the fifth instruction. If, as contended by appellant, there was no evidence that Mrs. Prince looked and listened before driving upon the track, it will not be presumed that she was negligent in this respect. 86 Ark. 183. Contributory negligence is a matter of defense which must be proved; it can not be presumed. 48 Ark. 333; Id 460; 46 Ark. 423; 58 Ark. 125. Moreover, appellant is estopped from raising this question by its own instructions 6, 7, 15, 16 and 18, requested and given by the court. 94 Ark. 528; 81 Ark. 579; 59 Ark. 317; 67 Ark. 531; 88 Ark. 172; 93 Ark. 589.

The objection that this instruction was misleading because there were several tracks, etc., is disposed of contrary to appellant's contention in the case of Railway v. Hitt, 76 Ark. 230, where this identical instruction was approved.

3. If appellant wished the tenth instruction to go further and charge the jury that there could be no recovery for pain and suffering after deceased became unconscious, it should have requested such instruction specifically. However, there is nothing in the instruction that could have misled the jury into believing that they could award damages for any other than conscious pain and suffering.

4. The verdict for the estate and next of kin, considering her pain and suffering and the pecuniary loss to each of her four children, is not excessive. 93 Ark. 190; Id. 183; 57 Ark. 317 Ark. 317; 60 Ark. 550; 87 Ark. 454; 76 Ark. 195.

OPINION

FRAUENTHAL, J.

This appeal involves two separate suits, instituted against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for injuries which John A. Prince and his wife sustained by being struck by one of defendant's trains while attempting to cross its railroad track at a public street in the city of Hope. The wife died from the injuries, and one of the suits was brought by John A. Prince as her administrator to recover damages for the benefit of her estate and next of kin. The other suit was brought by Prince in his individual capacity, to recover damages for the injuries to his person and property, and also for the loss of the services and companionship of his wife. The two suits were consolidated and tried together.

The defendant resisted recovery in both cases upon the ground that the injuries were not caused by any negligence upon its part, but by the contributory negligence of Mr. Prince and his wife. The jury returned a verdict in favor of both plaintiffs, and assessed the damages of John A. Prince at $ 4,000 and of the administrator for the benefit of the estate and next of kin of his wife at $ 10,000.

The defendant seeks to reverse the judgments entered upon the verdict, upon the grounds (1) that the uncontroverted evidence shows that plaintiff and his wife were guilty of negligence which contributed to cause the injuries; (2) that error was committed by the trial court in rulings made by it relative to certain instructions; and (3) that the amount of the verdict is excessive.

The plaintiff and his wife resided a few miles from the city of Hope, and about 10 o'clock of the morning of November 25, 1910, they rode in a two-horse wagon to said city. They were riding side by side upon a spring seat, and had with them their child, who was eight months old. The plaintiff and his wife were injured at the crossing of defendant's railroad track on Walnut Street. At this crossing there were nine tracks, running in a direction from about east to west, and the street crossed the tracks from north to south. There were five switch or passing tracks located on the north side of the main track, and three of such tracks were situated upon the south side thereof, and all these tracks were parallel. Plaintiff and his wife arrived at the north side of the crossing, and were preparing to drive over the tracks to the south side where the business portion of the city was located. The testimony in behalf of the plaintiffs tended to prove that when they reached the railroad crossing Mr. Prince stopped his team a short distance from the first track. At this time an engine, with a few cars attached, was doing some switching on the side tracks on the north side of the main track; and Mr. Prince stopped for about ten minutes, and until this engine and cars passed to the east side of the crossing, and apparently had stopped switching.

Upon the track next to and south of the main track there were standing eight box cars, which extended from the crossing, and west thereof, a distance of about one hundred yards, with no engine attached at either end; and on the main line there was standing a caboose some three hundred feet west from the crossing. After the engine and cars above referred to had passed to the east of the crossing and had ceased switching, Mr. Prince looked up and down the tracks, and listened for any approaching train. Seeing and hearing no moving train, he drove over the five switch tracks and the main track and then crossed the track upon which the eight dead cars were standing, and as his team went on to the next track a freight train composed of nineteen cars backed rapidly along this track, coming from the west, and struck his wagon and team. Mr. Prince, his wife and child were knocked out of the wagon, and the cars passed the crossing for a distance of probably forty or fifty feet. Mrs. Prince was thrown upon the track, and the cars dragged her along for some short distance, and when they stopped one of the wheels passed across her body and rested upon her breast. In this condition she remained thus pinioned for probably fifteen minutes, when the cars were moved, and she was released. During this time she was conscious and talked to her husband and others, asking for her babe, which was placed at her arms. After being released she lost consciousness, and died in about ten minutes thereafter. Mr. Prince was severely injured in his back and on other parts of his body. His wagon was totally destroyed, and one of the horses was killed.

In speaking of the care he exercised in looking and listening before passing to the track upon which the injury occurred, the plaintiff testified in part as follows: "I was driving and was looking both ways when I crossed the railroad. I always look both ways. I looked down toward the depot. The engine backing the train that killed my wife must have been down in that direction, but I did not see it any where. The train was backing up there, but the row of box cars standing there kept me from seeing it. There was a box car standing in front of the depot, and it must have prevented me seeing the moving train. I could not see the train. I looked down in that direction. I did not hear a train coming. I whipped up just as soon as I saw the train to make the horses jump across. I do not think I could have jerked them back, and thought it safest to go across."

He also stated that before going ...