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

• Decision Date: 09 March 1901
• Citation: 62 S.W. 64,69 Ark. 134
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CRABTREE
• Court: Arkansas Supreme Court

62 S.W. 64

69 Ark. 134

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CRABTREE

Supreme Court of Arkansas

March 9, 1901

Appeal from Crawford Circuit Court, JEPHTHA H. EVANS, Judge.

STATEMENT BY THE COURT.

Plaintiff's team, frightened by a train, ran over him, and broke his arm. He sued for damages.

On the trial the presiding judge refused to give the following instructions asked by defendant: "(8) It is the duty of one approaching a railroad track to look up and down the track as long as he approaches. If the railroad was crooked or through cuts and timber where the track cannot be seen for a great distance, it is incumbent on him to use the greater degree of caution, and to look as far as he can see; and, if from failure to do so he is injured, he cannot recover. (9) If the plaintiff saw, or by the exercise of reasonable care could have seen, the approaching train in time to have avoided injury to himself by the exercise of reasonable care and did not do so, then he cannot recover." The court in his charge to the jury told the jury that plaintiff must himself exercise ordinary care. And further said on that point: "Now, then, the law requires, on the part of every party who is about to pass from one side of a railroad to another at a crossing, that he shall look and listen for approaching trains. His failure to do so would be negligence on his part, and if his failure to do so proximately causes injury, or contributes to his injury, he could not recover."

There was a verdict and judgment in favor of plaintiff for the sum of $ 1.350, and the railroad company appealed.

Judgment reversed.

L. F Parker and B. R. Davidson, for appellant.

The statutory requirement as to ringing the bell and sounding the whistle eighty rods from the crossing applies only to "grade" crossings, when there is a possibility of collision. Sand. & H. Dig. § 6196; 126 Ill. 416, 425, 114 Mass. 350; 110 Mass. 222; 51 Conn. 444. Ordinary care is all that a railroad company owes to one who is simply near its track. 135 Ill. 491; 32 Ill.App. 339; 47 Ill.App. 384; 10 Lea, 103; 29 Kansas 166. Appellee should have looked in both directions before at tempting to cross the track. 36 Am. & Eng. R. Cas. 149; 45 id. 188; 45 N.W. 821; 27 Mo.App. 202; 24 N.Y. 430; 41 N.Y. 296; 45 X. Y. 660; 58 X. Y. 451; 41 Ia. 227; 38 F. 813; 72 Ill. 567; 11 S.W. 127. Appellee was guilty of contributory negligence in failing to look for the train. 54 Ark. 431-4; 56 Ark. 457-9; 61 F. 591; 62 Ark. 156; 32 Am. & Eng. R. Cas. 127; 23 id. 274; 20 S.W. 57; 95 U.S. 697-702; 114 U.S. 6115; 102 Pa.St. 425; 49 Pa.St. 60; 11 Am. & Eng. R. Cas. (N.S.) 90; 19 Am. & Eng. R. Cas. 376; 10 id. (N. S.), 511-515; 11 id. 81; 41 Am. & Eng. R. Cas. 574; 35 id. 352; 75 N.Y. 273; 106 N.Y. 396; 77 Me. 85; 47 Mich. 401; 74 Wis. 514; 54 F. 301; 96 Mich. 327.

Chew & Fitzhugh and C. B. Moore, for appellee.

Section 6196, Sand. & H. Dig. applies to crossings above grade as well as on or below grade. 25 Barb. 199; S.C. 13 N.Y. 78. There being no exception or proviso in the statute as to crossings over trestles, etc., none can be made. 46 Ark. 302; 57 Ark. 614. Independent of any statute, due care required the ringing of the bell. 59 Pa.St. 265; 7. L. R. A. 316; 75 Ill.App. 592; 53 Ark. 201. Signals at crossing must be given, as well to protect persons on the highway from danger from frightened teams as to prevent actual collision. 113 Mass. 366; 28 L. R. A. 824; 17 L. R. A. 254; 113 Mass. 370. Failure to comply with the statute was negligence. 2 Wood, Railways, 1319; Bish. Non-Cont. Law, § 445; 39 S.W. 1112; 33 S.W. 146; 36 S.W. 793; 64 N.Y. 535; 23 Am. & Eng. R. Cas. 282.

RIDDICK J. WOOD J., dissents.

OPINION

RIDDICK, J., (after stating the facts).

This is an action for damages alleged to have been caused by the failure of the engineer of a railroad train to give the statutory signals for crossings. The plaintiff, with a yoke of oxen and wagon, was approaching and about to cross defendant's railway at a public crossing when, as he states, the train approached suddenly and without warning and frightened the oxen, and injured him. The evidence tends to show that plaintiff was on the lookout for trains, but he was expecting a train from the south, which was about due, when the train that caused the injury came from the north. The railway lay, directly ahead of plaintiff as he approached and it crossed the road on which he was traveling at right angles, upon a trestle ten or fifteen feet above the road. There was evidence showing that, had plaintiff looked to the north, he could hove seen the train as it came through a cut in a hill some four hundred feet before it reached the trestle, and that from the cut to the trestle the train was in plain view of plaintiff, had he looked in that direction. Plaintiff stated that he was keeping a careful lookout, but did not see the train until the engine was on the trestle Under this state of facts the presiding judge was asked by the defendant company to instruct the jury that it was the duty of the plaintiff "to look up and down the track" while approaching the crossing. He refused to give this instruction, but told the jury that the law requires of one about to cross a railroad that he shall "look out and listen for approaching trains." The charge given by the learned judge contains a very clear and accurate statement of the law as far as it goes, though stated in rather general terms, but, as there seems no doubt from the evidence that plaintiff did look and listen for trains, while there is conflict in the evidence as to whether he looked for a train from the north, or kept any lookout in that direction, from which the train causing the injury came, we think instructions numbered eight and nine asked by defendant, and which are set out in the statement of facts, should have been given. It is true that plaintiff says he looked both ways, but, as he did not see the train until it reached the trestle, when, according to the evidence, he might by looking have seen it over four hundred feet before it reached that point we think the question as to whether he exercised ordinary care in keeping a lookout in that direction should have been directly submitted to the jury. A lawyer would, of course, understand that the charge of the judge was intended to convey the idea that the traveler about to cross a railroad track must look for trains from both directions, and must continue on his guard until the danger is passed, but jurors are not usually learned in the law. They may have concluded in this case that plaintiff discharged the duty to look and listen by looking only in the direction from which he was expecting a train to come, or by looking and listening at only one time. We do not say that they did take this view of the law, but they might have done it under instructions which did not explicitly tell them that it was his duty to look in both directions, and to continue on his guard until the track was passed. When the circuit judge was asked to make the law clear to the jury on this point by telling them that one approaching a railroad track should "look up and down the track as long as he approaches," we think he should have done so. But counsel for plaintiff says that we should presume that the attorney for the company, in presenting the case to the jury, argued that the instruction that one about to cross a railway track "should look and listen for approaching trains" meant that he should look north as well as south. We are willing to indulge in this presumption, for we have no doubt that this argument as to the meaning of the instruction was made by the attorney for the defendant company. In other words, the trial judge having refused to explicitly instruct the jury on this point, the only resource left to the company was to rely upon a statement of the law made to the jury by its attorney. But jurors are not required to take the law from counsel, and it was putting an undue burden upon the defendant company to compel it to rely upon convincing the jury as to the proper view of the law by an argument of its attorney. If the sympathies of the jury happened to be with the other side, that might be difficult to do, and might be too heavy a task even for the most gifted attorney. It is a burden...