St. Louis & S. F. R. Co. v. Carr

• Decision Date: 07 March 1910
• Citation: 126 S.W. 850
• Parties: ST. LOUIS & S. F. R. CO. v. CARR.
• Court: Arkansas Supreme Court

126 S.W. 850

ST. LOUIS & S. F. R. CO. v. CARR.

Supreme Court of Arkansas.

March 7, 1910.

Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.

Action by W. B. Carr against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This was an action to recover damages for a personal injury which the plaintiff alleged he sustained at a public crossing over defendant's railroad track in the city of Ft. Smith, Ark. The plaintiff testified that about 10 o'clock on the night of January 22, 1909, he was traveling on foot along a public wagon road or street which ran across the defendant's railroad track in said city; that when he got to within about 30 feet of the track, he noticed a freight train going north along the crossing and towards the depot, which was about one mile from the crossing. He proceeded up nearer the crossing, and there stopped somewhat close to the track, and waited a few minutes for the freight train to clear the crossing so that he could pass over. There were a number of box cars in the train, and several of these passed by him as he stood waiting for the train to clear the crossing. He was on the west side of the track, and was looking towards the north, the direction in which the train was moving, when he heard a noise, and, turning, saw a door or other object projecting from the train; the door or projecting object struck him on the head before he could dodge it, and knocked him down, rendering him unconscious, and causing him to fall so that his legs were caught under the moving train. He was cut severely on the left side of his head, and his legs were injured to such an extent that they had to be amputated, one above, and the other below, the knee. Some time after the freight train had passed a passenger train arrived over this track from the south; and the employés, hearing his cries, went to his assistance and took him on the train. All the employés of the crew on the freight train testified that they did not see the plaintiff, and did not know that he was injured until long after the occurrence, when they were told of it. They also testified that the freight train had left Paris, Tex., a distance of about 160 miles from Ft. Smith, and that they had inspected the cars at every stopping place from that point, the last of which was 14 miles from Ft. Smith. They stated that there was no car in the train, from the last station, which had a swinging door, but that all the doors of the cars were upon slides, that when the cars were last inspected at the above station the doors were found in good condition, and that neither the doors nor any other object was projecting from any of the cars. No person other than the plaintiff testified to seeing the injury when it occurred.

At the request of the plaintiff the court instructed the jury, in substance, that if the plaintiff was at a crossing of a highway over defendant's track at Ft. Smith in the nighttime, intending to cross the track on the highway, and a train of defendant, going north, prevented him from doing so, and while waiting for the crossing to be cleared he was struck by a car door negligently left open and thereby injured, the plaintiff should recover if, at the time, he was exercising ordinary and reasonable care for his own safety, and instructed, in effect, that if the injury did not occur at a public crossing, the jury should find for defendant. The court at the request of plaintiff, amongst other instructions, gave the following: "(7) If plaintiff was wanting in ordinary and reasonable care for his own safety, and was thereby injured, he cannot recover; or, if the defendant was in the exercise of ordinary and reasonable care as herein defined, then plaintiff cannot recover. Plaintiff was not, however, in order to exercise ordinary care for himself, required to anticipate negligence on the part of defendant, if such negligence existed, but might presume that defendant would not be negligent." At the time of the giving of this instruction the defendant made a specific objection to the latter portion thereof. The defendant requested the court, amongst other instructions to give the following, which were refused: "(2) I charge you that a railroad company owes no duty to one walking on its track, or near its track, other than not to wantonly injure him after discovery. If you find from the evidence that the employés in charge of the freight train passed going north about 10:40 p. m. on January 22, 1909, did not see the plaintiff, you will find the issues for the defendant." "(10) If you find that the cars were inspected at Jenson, 14 miles from the injury, which was the last stop of the train before the injury, and found to be in perfect condition, and you further find that it was out of condition at the time of the injury, and you further find that none of the trainmen had any knowledge of any such defect, or of any break after such inspection and before the injury, then the defendant would not be guilty of any negligence." A verdict was returned in favor of the plaintiff, and the defendant prosecutes this appeal.

W. F. Evans and B. R. Davidson, for appellant. Rowe & Rowe and C. A. Starbird, for appellee.

FRAUENTHAL, J. (after stating the facts as above).

It is urged by counsel that the defendant had the right to use its tracks at the crossing, and that it only owed the duty to plaintiff not to injure him after having discovered his position of peril. But the rule relative to the liability of a railroad company for an injury done after a discovered peril is not applicable to the facts of this case, as adduced on the part of the plaintiff; for, according to the evidence of the plaintiff, he was a traveler in a public highway at the crossing of the defendant's tracks, and in such case he was not a trespasser or licensee on defendant's right of way, but he had the right to use the highway crossing. It is true that the railway company had also the right to the use of its tracks over the highway crossing. Where the railroad is situated upon a highway, the public has the right to use the highway as well as the railroad, and each must make reasonable and proper efforts, with due regard to the rights of the other and in view of all the circumstances, to foresee and avoid collision....