St. Louis S. W. Ry. Co. v. Dingman

• Decision Date: 04 April 1896
• Citation: 35 S.W. 219
• Parties: ST. LOUIS S. W. RY. CO. v. DINGMAN.
• Court: Arkansas Supreme Court

35 S.W. 219

ST. LOUIS S. W. RY. CO. v. DINGMAN.

Supreme Court of Arkansas.

April 4, 1896.

Appeal from circuit court, Woodruff county; Grant Green, Jr., Judge.

Action by J. K. Dingman against the St. Louis Southwestern Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Dingman, a mechanic engaged for three or four years past in work at sawmills, and, at the time of the injuries complained of, residing at Meredith, a station on appellant's railroad about three miles south of Fairoaks, had left McCrory, a station north of Fairoaks, and reached the latter station late in the afternoon, — having walked on the railroad track, — and, about 9:50 p. m. of the same day, left Fairoaks, going south, on the track, towards his home, and when about three-fourths of a mile from Fairoaks, was struck by the pilot of one of defendant's passenger trains going south, and running at the rate of speed of about 20 miles an hour, and was thrown headlong on the right side of the track. His left arm, however, extended across the rail, and the same was run over and severed from the body, between the shoulder and the elbow; and, in his effort to get up, his head was also struck by some part of the moving engine or cars, and severely bruised; and for this injury he sued, laying his damages at the sum of $20,000 dollars, alleging negligence on the part of the trainmen in not keeping a proper lookout as the law requires, and that, had such lookout been kept, he would not have been injured. Verdict and judgment for $3,700, and defendant company appealed. The proof tended to show that the night had been dark and stormy, with considerable rainfall; that when the accident occurred, about 10 p. m., the storm had somewhat abated, but flashes of lightning were still occurring at intervals, and the night was foggy, so that the engineer's headlight, shown to be in good working order, did not aid the lookout from the cab, except imperfectly, and that a man standing or walking on the track ahead could not have been readily observed by the engineer and fireman more than 115 feet, whereas, had the night been clear, he could have been seen by them 500 feet. The engineer and fireman both testify that they did not see plaintiff before or after the accident, and knew nothing of it until informed by the telegraph operator at Altheimer, on the train's arrival there, and that they were on the constant lookout at the time. Plaintiff testifies that he left Fairoaks about the time the train arrived there southward bound, as he was also; that just before he was struck he looked back, and saw the train on the Y track, but did not see the train any more until the engine was within 15 or 20 feet of him, and on seeing it so near he just jumped up, and the pilot struck him under the feet and threw him off, as stated; that he knew it was the time for the train to pass. He further stated that no alarm or signal was given by the trainmen as it approached him; that the headlight was burning all right, and he would probably have seen it in time, but for the lightning flashes; that he was walking along between the rails, in the middle of the track, when struck. There was evidence tending to show that the plaintiff had been drinking heavily during the day, and was intoxicated at the time of the accident, and also that he had admitted the next morning, to one of the witnesses, that he was not walking on the track, but sitting down on the end of a cross tie, resting, when the accident occurred. The trainmen testified that they all had experience in their callings, and had been a long time engaged therein. The court refused to give the following instructions, and others to the same effect, asked by defendant: "(1) One who is injured by the negligence of another cannot recover any compensation for his injury, if he, by his own negligence and willful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him, except where the direct cause is the omission of the other party, after becoming aware of the injured party's negligence, to use a proper degree of care to avoid the consequences of such negligence. 2. In this case, if you find from the evidence that defendant was guilty of negligence which contributed to his injury, your verdict should be for the defendant, unless you find defendant's employés were aware of the plaintiff's negligence, and then failed to use a proper degree of care to avoid the consequences thereof. (3) If the facts and circumstances in evidence in this case show that plaintiff, at the time he was injured, was in a dangerous position, and was where a prudent man would not have stopped, and that his acts directly contributed to the injury, he will not be entitled to a verdict on account of any negligence on the part of the defendant's employés, unless the employés in charge of the train saw the danger plaintiff was in, in time to have prevented the accident, and neglected to use all efforts in their power to avoid the accident. (4) If the jury believe from the evidence that the employés in charge of the train neglected to keep a proper lookout, and thereby failed to see the plaintiff; that plaintiff was walking on the track, in advance of the train; that the track was open, and he could have seen the approaching train for some distance, and in time to have gotten out of the way of same, — then he was guilty of contributory negligence, and defendant is not liable, notwithstanding the negligence of its employés, and verdict should be for the defendant." The court gave the following instruction for plaintiff: "(5) Although you may...