St. Louis Iron Mountain & Southern Railway Co. v. Hitt

• Decision Date: 01 July 1905
• Parties: ST. LOUIS IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. LUTHER HITT
• Court: Arkansas Supreme Court

88 S.W. 911

76 Ark. 224

ST. LOUIS IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. LUTHER HITT

Supreme Court of Arkansas

July 1, 1905

Appeal from Nevada Circuit Court, JOEL D. CONWAY, Judge.

Affirmed.

Judgment reversed and case remanded.

J. E Williams and B. S. Johnson, for appellant.

McRae & Tompkins, for appellee.

OPINION

HILL, C. J.

This case presents the same questions as to the liability of the appellant which are presented in St. Louis, Iron Mountain & Southern Ry. Co. v. Robert Hitt, post p. 227. This case was tried first in Nevada County, and that case in Clark County, and brought here on separate records, but have been argued together. They arose from the same occurrence. The facts will be found stated in the Robert Hitt case. In this case the court gave on behalf of the appellee the following instruction:

"5. You are instructed that mere proof that the plaintiff looked and listened as they started to drive upon the track, and that they did not look again, does not alone establish the contributory negligence. You should take into consideration all the facts and circumstances in evidence and if from these you believe that the plaintiff acted as a reasonable, prudent man, then he would not be deemed, to have been guilty of contributory negligence."

In St. Louis & S. F. Rd. Co. v.-- Crabtree, 69 Ark. 134, 62 S.W. 64, the court said: "If he is struck and injured by a train at the crossing, which he might have seen had he continued on his guard, it would not be sufficient on a trial for the injury for the judge to say generally that it is the duty of one about to cross a railroad to look and listen for trains, but he should go further and explain that this means that a traveler should continue to use his eyes and ears until the track and danger are passed."

In Railway Company v. Cullen, 54 Ark. 431, Chief Justice Cockrill for the court said: "A failure to look and listen is therefore evidence of negligence on his part; and if the injury is the consequent result, and his want of precaution is unexplained by circumstances which might mislead an ordinarily prudent man or throw him off his guard, he cannot have reparation for the injury, because his own want of care is the author of his misfortune."

In Martin v. Little Rock & Ft. S. Ry. Co., 62 Ark. 156, 34 S.W. 545, the court said: "We do not hold that in every case where a traveler fails to look and listen and is injured by a train while crossing a railway track, the case should be taken from the jury. It is only when it appears from the evidence that he might have seen had he looked, or might have heard had he listened, that his failure to look and listen will necessarily constitute negligence." Applying these principles to the instruction in question, the instruction tells the jury that failure to continue to look and listen does not alone establish...