St. Louis & San Francisco Railway Company v. Adams

• Decision Date: 28 June 1920
• Docket Number: 88
• Citation: St. Louis & San Francisco Railway Company v. Adams, 223 S.W. 26, 144 Ark. 609 (Ark. 1920)
• Parties: ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. ADAMS
• Court: Arkansas Supreme Court

223 S.W. 26

144 Ark. 609

ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. ADAMS

No. 88

Supreme Court of Arkansas

June 28, 1920

Appeal from Lawrence Circuit Court, Eastern District; Dene H Coleman, Judge; affirmed.

Judgment affirmed.

W. F Evans, W. J. Orr and Ponder & Gibson, for appellant.

1. The law of this case is well settled and properly by the former appeal. 206 S.W. 45. A traveler crossing a railroad track must "look and listen." 101 Ark. 321; 117 Id. 464; 99 Id. 170; 16 S.W. 169. The evidence on the second trial is materially different from that on the first trial.

2. The court erred in its instructions given and refused. 84 Ark 270. The evidence supported the instructions refused for defendant and it was error to refuse them.

David L. King, for appellee.

1. The law of this case is settled. 136 Ark. 1; 206 S.W. 43. The testimony (set out in full) makes out a complete case for the jury and justifies the verdict. The train was running at excessive speed, and the bell was not rung nor whistle blown as required by law, and negligence is conceded. Billingsley stopped, looked and listened; did his whole duty. 96 Ark. 638; 66 F. 502; 124 Ark. 413; 137 Id. 217; 97 Id. 160; 101 Id. 321. The question of due care on Billingsley's part is settled by the jury, as they were properly instructed. 20 Ann. Cases 1200; 124 Ark. 417; 92 N.E. 337.

The instructions are not abstracted, and hence are presumed correct. 121 Ark. 274. But there was no error in them. 11 L. R. A. 364; 74 N.E. 34; R. C. L. 100; Ann. Cases 1913 A, 49; 92 N.E. 337; 44 L. R. A. 815. Correct instructions should have been asked, and, as appellant did not ask them, it can not complain now. 117 Ark. 579; 97 Id. 180; 74 Id. 444; 94 Id. 6; 120 Id. 497. But if error it was not prejudicial. 111 Ark. 550. The evidence shows that Billingsley was guilty of no negligence, and the verdict is very small.

OPINION

HUMPHREYS, J.

Appellee, in her own right and as guardian of Troy L. Billingsley, her minor child, instituted suit against appellant in the Sharp Circuit Court, to recover damages for the death of her husband, caused by a collision, at a public crossing in the town of Hardy, between one of defendant's passenger trains and her husband's team and wagon, which he was driving, through the alleged negligence of appellant's employees in operating the train.

Appellant filed answer, denying negligence in the operation of said train, and alleging that the injury occurred through the contributory negligence of appellee's husband, Louis Billingsley.

On change of venue, the cause was tried in the Eastern District of Lawrence County, which resulted in a directed verdict in favor of appellant and a judgment in conformity thereto, dismissing appellee's complaint.

From that judgment, an appeal was duly prosecuted to this court, under the style of Billingsley v. St. Louis & San Francisco Railway Company, reported in 136 Ark. 1. On appeal this court ruled that the circuit court erred in holding the undisputed evidence, when viewed in its most favorable light to this appellee, showed that, as a matter of law, the injury and death of her husband resulted from his contributory negligence, reversed the judgment and remanded the cause for a new trial.

Upon remand, the cause was submitted upon the pleadings, evidence and instructions of the court, which resulted in a verdict for appellee in her own behalf in the sum of $ 750 and in behalf of her minor child for $ 5,000. A judgment was rendered in accordance with the verdict, from which verdict and judgment an appeal has been duly prosecuted to this court.

On the former appeal, the facts developed on the first trial were elaborately stated. It is insisted that the facts developed upon retrial differed in two material respects from the facts stated by this court in the original appeal.

First. On the former appeal, it was stated that "There was a freight train on the passing track east of the crossing, and the passenger train was coming in from the west." The original evidence justified that inference. The evidence in the instant case makes it clear that the freight train, referred to as standing on the passing track east of the crossing, had moved, before the accident, from the passing track to the extreme west end of the yard with its rear end several hundred yards west of this crossing. Appellants are correct then in saying that the evidence on the former trial and on this trial was different in this respect. There is an element of danger in the direction of the east revealed by the evidence in the instant case more favorable to appellee's cause than the freight train erroneously shown on the former trial to have been standing on the passing track east of the crossing. In the instant case, it developed that about the time Mr. Billingsley approached the crossing where he was killed, a local freight train was expected from the east. In the exercise of ordinary care this would have justified him looking to the east first, to see whether the train was coming from that direction. He was familiar with the schedule time of the trains.

Second. On the former appeal, it was stated the evidence showed the distance to be fourteen feet between the north rail of the commercial track and the north rail of the main line. This statement was a mere clerical error, as shown by the several measurements that formed the sum total of the distance between these points. The statement referred to is as follows: "The distance between the commercial track and the passing track is eight feet, and the distance between the rails is five feet, and there is nine feet between the passing and main track, making a distance of fourteen feet between the north rail of the commercial track and the north rail of the main track." By adding the several measurements referred to, the total distance would be twenty-seven feet, instead of fourteen feet. The distance between the rails of the commercial track was five feet; likewise, the distance between the rails of the passing track was five feet; the distance between the commercial track and passing track was eight feet; and the distance between the passing track and the main track was nine feet; which, taken together, makes a total of twenty-seven feet, showing that the addition was a mere clerical error. Appellant is therefore not correct in saying that the evidence in the present case in this respect is materially different from the evidence on the former trial.

With the modification suggested as to the absence of the freight train standing on a passing track east of the crossing, and that it was about the schedule time of the local freight train coming from the east, reference is made to the statement of facts in the original appeal as a correct statement of facts in the instant case. Under the modification, we think the facts are a little more favorable to appellee in the instant case than on the former appeal. There being no material change in the facts in the two trials, it can not be said now, any more than then, that the undisputed facts show that Mr. Billingsley, as a matter of law, was guilty of contributory negligence. For the reasons assigned in our original opinion, we adhere to our conclusion that, under the undisputed facts in the case, it was a question for the jury to determine whether or not Mr. Billingsley looked and listened for passing trains as he approached the railroad crossing. It was not error for the court to refuse to direct a verdict in favor of appellant.

Appellant insists that the...