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

• Decision Date: 30 January 1911
• Citation: 134 S.W. 315,97 Ark. 405
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STACKS
• Court: Arkansas Supreme Court

134 S.W. 315

97 Ark. 405

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

Supreme Court of Arkansas

January 30, 1911

Appeal from Conway Circuit Court; Hugh Basham, Judge; affirmed.

STATEMENT BY THE COURT.

On November 12, 1908, at about 5:30 o'clock P. M., appellee while attempting to drive his team and wagon across the tracks of appellant's line of railroad from south to north at a public crossing in Plumerville, Ark., was struck by a west-bound local freight train, and was permanently injured. He brought suit for damages, alleging negligence on the part of appellant's employees in operating the train.

Appellant answered, denying negligence on its part and alleging contributory negligence on the part of appellee.

The facts and circumstances connected with and attending the accident, according to the testimony of appellee, are substantially as follows:

He was at a gin in Plumerville on the south side of appellant's line of railroad, and drove his wagon and team away intending to cross the railroad at a public crossing about 200 yards east of the gin. The wagon road from the gin to the crossing is parallel with and close to the railroad track and is six feet lower. There are three railroad tracks there. The south track is known as the "house track," on which cars are stored. The middle one is the passing track and the north one is the main track of the railroad. On the day the accident happened, there were cars standing on the south track on the east side of the crossing, and they were close up to it. There were also cars on the middle track east of the crossing; but these cars were not so close to the crossing. There were three or four of them, and they were 10 12 or 14 feet east of it. The road crossing there runs north and south, and appellee was attempting to cross from the south. He drove in a trot until he reached the crossing. Appellee was standing up in the middle of the wagon, and as his team started up the grade to the first or south track, he checked it (but did not stop entirely) to look and listen for trains. He was expecting a passenger train from the west, which was due about that time, but also states that he knew extra trains were run, and that he must look in both directions, and that he did so.

The railroad track east of the crossing was straight for one-fourth of a mile, and then made a curve. Appellee drove across the south track to the middle track, looking as best he could between the cars, but did not stop his team. Just as his team started to go on the main track, the mules shied, and he hit them, and as the wagon got on the track appellee says he remembers the engine striking it, but does not remember anything else. At the time the mules shied, appellee was not where he could see the train. He had not yet got past the box cars on the middle track. Appellee did not hear the bell ringing nor the whistle sounded for the crossing. Appellee was severely injured, and one of his legs had to be amputated. No question in regard to the verdict being excessive is raised. Hence it is not necessary to further abstract the evidence showing the extent of appellee's injuries.

Other evidence was introduced by appellee tending to corroborate his statements, both as to the way the injury occurred, and as to cars being on the middle track, east of the crossing. Calvin Sellers for the appellee testified:

"I am acquainted with the location and direction of the railroad track in the town of Plumerville in this county. I know where the public road crosses the track at the bridge some 150 or 200 feet east of the depot in Plumerville. I have recently examined that track and taken measurements of the distances there. The railroad tracks there are 5 feet 3 inches wide, each of them the same width. Between the main line and what is known as the "passing track" the distance is 7 feet and 9 inches. Between the passing track and the house track is 8 feet 6 inches. The distance from the south rail of the south track to the north rail of the north track is 32 feet. I have measured the length of an ordinary two-horse wagon. The length from the hind end of the bed to the front end of the tongue is 21 feet. The bed of an ordinary wagon is 10 feet. The width of a box car in addition to the tracks, when standing on the tracks, the side of the car would extend 22 1/2 inches over each rail. That is the ordinary car I measured. Q. Did you, at the time you took these measurements, measure or ascertain how far down the main track one could see who was standing in the center of the road and in the center of the south track with a box car standing up within 18 or 20 inches of the road on the south track? Answer if you did first? A. I did not exactly, the figures you give, but I can state how the measurement was made, suppose the box car to have been standing within 12 inches. The Court: Within 12 inches of what? A. Of the east side of the road. Supposing the box car to have been standing one foot east of the wagon road crossing the tracks and any person standing in the center of the south track at about what we took to be the center of the road a distance of 6 feet by measurement, the distance to the main line could be seen past the corner of the box car, the center of the main line would first be seen 36 feet east of the center of the main line and center of the crossing. I made no measurements of how far down the track cars could have been seen or a train coming if there had been cars on the middle track. I made a diagram of the three tracks there on that occasion; made it carefully with the instruments I used to make it with. I hardly know to what extent I am educated in mathematics. I have completed the course in arithmetic, algebra and geometry at the University of Arkansas."

Appellee introduced other evidence to show that it was not quite dark, and that the headlight of the engine was giving a dim light. That no smoke was escaping from the smokestack of the engine, and that the train was gliding in; and that neither the bell was rung nor the whistle sounded for the crossing.

Appellant introduced evidence to show that it was against the rules of the company to leave cars standing on the middle or passing track, and that none were standing there when the train came in on the day appellee was injured; that the steam had been shut off, and that the train was not running over nine miles an hour; that there were twelve cars in the train; that the bell was ringing, and that the whistle had been blown for the crossing; that the headlight was burning; that the engineer and fireman were both keeping a lookout; that the engineer was on the right hand side of the engine, the side farthest away from appellee; that, as soon as the fireman discovered the peril of appellee, he gave the alarm, and the engineer did all that could be done to stop the train; that the air was working, and the train was stopped as quickly as possible.

There was a verdict and judgment for appellee, and the case is here on appeal.

Judgment affirmed.

Lovick P. Miles and Thomas B. Pryor, for appellant.

This is a clear case of contributory negligence. Had the appellee exercised the precaution of an ordinarily prudent person and used his senses of sight and hearing to ascertain whether or not a train was approaching, or even if he had taken warning from the instinctive action of the animals he was driving, the accident could have been avoided. Even if appellant was negligent in failing to ring a bell or sound a whistle and to keep a lookout as alleged in the complaint (none of which is conceded), still this did not absolve the appellee from the duty to exercise due care for his own protection at a place which he was bound by law to know was a place of danger and to govern himself accordingly. 95 U.S. 698; 114 U.S. 617; 82 Ark. 525; 69 Ark. 138; 54 Ark. 431; 62 Ark. 156; 76 Ark. 225; 56 S.E. 432; 74 Mo. 602; 80 Mo. 335; 113 Mo. 1; 78 Ark. 60 and cases cited; 108 Iowa 188; 122 Mich. 149; 49 Hun (N.Y.), 605, 75 N.Y. 273; 92 Ark. 442; 61 Ark. 559.

Sellers & Sellers, for appellee.

1. It is not error in the court to refuse to multiply instructions on an issue concerning which the jury have already been fully instructed. 46 Ark. 209. Moreover objections and exceptions in gross, or which are not specific, are of no avail. 60 Ark. 256; 59 Ark. 314; 54 Ark. 19; 38 Ark. 539; 39 Ark. 339; 32 Ark. 225; 86 Ark. 193; 84 Ark. 95.

2. Appellee's requested instruction No. 5, which was given, to the effect that the burden of proof was on the appellant to show contributory negligence, is correct. 8 Enc. of Ev. 854; 2 Thompson on Neg., § 366.

3. The court correctly stated the law to the jury in instructing them that if the plaintiff was injured by reason of the negligence of the defendant, a recovery could not be defeated on the ground of contributory negligence unless it appeared from the...