St. Louis & San Francisco Railroad Co. v. Wyatt

• Decision Date: 04 June 1906
• Citation: 96 S.W. 376,79 Ark. 241
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. WYATT
• Court: Arkansas Supreme Court

96 S.W. 376

79 Ark. 241

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. WYATT

Supreme Court of Arkansas

June 4, 1906

Appeal from Craighead Circuit Court; Allen Hughes, Judge; affirmed.

Judgment affirmed.

L. F Parker and W. J. Orr, for appellant.

The testimony shows that there was a point between the main line and the belt line where appellee could have seen the engine approaching for a distance of 164 feet, had he looked. It was his duty to look and listen, and to continue looking and listening until all danger was passed. 69 Ark. 134; 119 F 157; 86 S.W. 283. If it be conceded that there was negligence on the part of appellant, still this did not excuse appellee from the duty to exercise care as a reasonable and prudent person for his own safety. 105 N.W. 557; 95 U.S. 697; 16 A 624; 20 S.W. 162. Both the physical facts and the testimony of plaintiff prove his contributory negligence, and the case should have been taken from the jury. Authorities supra; 56 N.W. 603; 55 A. 627; 90 S.W. 136; 24 A. 747. See also 54 A. 276; 174 U.S. 379; 139 F. 739; 70 Ark. 606.

F. G. Taylor, for appellee.

Appellee, when about to go upon the crossing, fully performed his duty by stopping, looking and listening at the only place where he could stop with safety. Having done so, he had a right to presume that appellant's employees would perform their duty. 18 N.W. 651; 4 N.E. 84. Where there is a doubt as to the proper place to stop, look and listen, as a general rule such questions will be referred to the jury. 54 A. 276. If the negligence of the injured party is of a negative character, such as lack of vigilance, and no injury would have resulted from it but for the primary wrong or negligence of the corporation or its servants, it will not defeat a recovery. 23 F. 738; 7 N.E. 801. Where the question arises upon a state of facts on which reasonable men may fairly draw different conclusions, the fact of negligence is one for the jury. 61 Md. 53; 5 A. 329; 22 N.E. 20; 43 P. 1136; 74 P. 1104.

HILL C. J. BATTLE, MCCULLOCH, JJ.

OPINION

HILL, C. J.

The instructions were more favorable to the appellant than it was entitled to, and the sole question in the case is the sufficiency of the evidence to sustain the verdict for the appellee.

Culberhouse Street in the city of Jonesboro runs north and south, and crosses at right angles the tracks of appellant railroad. The first track on the north is called the "belt line, " and it is 41 feet from center to center of the next or main line track. There are 36 feet in the clear between these tracks. The street is somewhat down grade from the belt line track to the main line; as one witness expressed it, "it is enough down hill for your wagon to run up on your team." Between these tracks, and on the east of the crossing, is a coal chute, and west of the chute is a projection to it, built of heavy timbers. Coming from the north on Culberhouse Street, it is impossible to see an engine on the main track beyond the point of the coal chute until just about to the main line track, and this projection, or scaffolding, partially obstructed the view from where it begins.

It is 52 steps (156 feet) from the main line crossing to the coal chute, and it is 37 steps (111) feet from the same point to the projection to the chute.

Mr. Wyatt, the plaintiff below, was an old man of 82 years at the time of his injury. He was driving a pair of mules to a wagon partially loaded with corn, and he was sitting on his load. He was going south on Culberhouse Street, and as he approached the crossing he stopped before reaching the belt line track. He looked and listened there. He was afflicted with the "hard hearing" of old age. The belt line track was filled with box cars on either side the street, and a space of about 20 feet left to pass through. It was impossible to see east on the main line from where Mr. Wyatt stopped. Seeing and hearing nothing of a train, he drove on rapidly, intending to rush on through the crossing, as he thought no train was then approaching, and that it was best to get across the tracks quickly. A switch engine, moving rapidly from the east, struck the rear of his wagon, upsetting it and severely injuring him. The mules were on the main line track, or near to it, when he first saw the engine, which appeared to be only ten or twelve steps away. He was uncertain whether it was safest to try to back his mules or run them across, and tried the latter, and got hit. Mr. Wyatt heard no bell ringing or whistle sounding, and several other witnesses testified that the signals were not given.

In regard to looking and continuing to look and to look both ways, the testimony of Mr. Wyatt is not as clear as it might be, and is contradictory. All of it, so far as relates to this point, is as follows: On direct examination he said: "Were you looking as you approached the track?" "I was looking."

On cross-examination, this is the statement: "You didn't stop any more until you were hit?" "No, sir." "You didn't look to the right or left until you got on the track?" "No, sir."

The following is the redirect and recross-examination in full:

REDIRECT EXAMINATION.

Q. "At the time you stopped to look and listen before you started across could you hear any bell ringing or whistle sounding?". A. "No, sir."

Q. "Or engine puffing?" A. "I could not hear anything."

Q. "And when you saw that you could not see or hear any train you started across there?" A. "Yes, sir."

Q. "After you got past the box cars, could you see any train then?" A. "I saw the engine when I got past the box cars."

Q. "But at the time you saw it you think your mules were just about on the track?" A. "That is my idea; that they were on the track the engine was on."

Q. "And you could not back them?" A. "I could not back off or run across fast enough to keep from getting caught."

Q. "Now, as you approached this crossing, were you looking for a train?" A. "I was looking; I never crossed there but what I was looking."

Q. "And you could see part of the way on both sides of you?" A. "Yes, sir."

RE-CROSS EXAMINATION.

Q. "You say you were looking as you approached that crossing. That was before you stopped, was it?" A. "Yes, sir; I looked then and afterward, too."

Q. "You could not see these for the box cars?" A. "I was looking to see whether or not there was any person to tell me whether or not there was any danger."

While Mr. Wyatt stated on cross-examination that he did not look, yet he stated positively in the same examination that he did look, and no point was then made that he had contradicted himself, and his attention was not called to it. The jury were instructed if he failed to look to find against him, and their finding in his favor is a finding that he did look, and his testimony furnishes substantial basis for it. There is nothing in his testimony that reflects upon his candor in the least, except this unreconciled contradiction on a material matter, and probably the jury concluded that his hard hearing had caused him to misunderstand the question. The question he answered later to the effect that he did look show he did understand them, for they are not answered in monosyllables, but the answers are responsive to the questions, and show understanding of them. There is evidence to justify the jury in finding that he did comply with the requirements to continue to look in both directions until the danger was passed.

But the traveler "is deemed to have seen or heard what is plainly to be seen or heard." St. Louis, I. M. & S Ry. Co. v. Dillard, 78 Ark. 520, 94 S.W. 617. If Mr. Wyatt could have seen the engine approaching by looking, he is charged with having seen it, for the courts will not hear a party say that he did not see what was plain to be seen. Therefore his...