St. Louis & San Francisco Railway Company v. Stewart

• Citation: 207 S.W. 440,137 Ark. 6
• Decision Date: 23 December 1918
• Docket Number: 51
• Parties: ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. STEWART
• Court: Supreme Court of Arkansas

207 S.W. 440

137 Ark. 6

ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. STEWART

No. 51

Supreme Court of Arkansas

December 23, 1918

Appeal from Crittenden Circuit Court; R. H. Dudley, Judge; affirmed.

STATEMENT OF FACTS.

R. M Stewart while riding in his automobile across a public railroad crossing in the town of Turrell, was struck by a south-bound passenger train of the St. Louis-San Francisco Railway Company and severely injured and his automobile badly damaged. He sued the railway company to recover damages. The material facts are as follows:

On the 6th day of December, 1917, R. M. Stewart, superintendent of an oil mill at Marianna, Arkansas, and N. B. Rice, night superintendent of an oil mill at Forrest City, Arkansas, left Memphis, Tennessee, in an automobile about six o'clock p m. for Tyronza, Arkansas. Stewart was the owner of the automobile and drove it. They got to Turrell, Arkansas, about seven-thirty o'clock. It was then quite dark. The railroad track at Turrell runs in a northerly and southerly direction and the public road is east of the track. The accident occurred at a public road crossing two or three hundred yards north of the station at Turrell. There is a slight curve in the railroad track after the station is passed. When they reached Barton Avenue they turned into it and crossed the railroad track. They practically stopped when they turned into Barton Avenue to go across the public crossing and looked both ways and listened for the approach of a train. It was dark and they heard no sound of bell or whistle to indicate the approach of the train. They did not see any light or hear the approach of the train. It is something like thirty or forty feet from where they turned into Barton Avenue to cross the railroad tracks to the edge of the rails. There is a five or six feet incline at the crossing and they went up that incline very slowly, looking both ways for the light of an approaching train and listening for it, or for the signals warning them of its approach. The automobile went up the incline at not over three or four miles an hour and just as they turned the automobile into Barton Avenue, they practically stopped. That is, the speed of the automobile did not exceed one mile an hour. Just as the front wheels passed over the first rail, there was one short blast of the whistle and the cow catcher ran into the wheels of the automobile and there was another blast of the whistle. The train knocked the automobile twelve or fifteen feet down the track and tore the front wheels off it and otherwise injured it. Stewart was also severely injured in the accident. The above is the version of the accident testified to by R. M. Stewart. His testimony was in all essential respects corroborated by that of his companion, N B. Rice. Rice, however, gave the rate at which the automobile was running a little faster than Stewart. Both of them testified, however, that the headlight on the engine was not burning and that they could not see any lights in the coach windows, although they were looking for the approach of a train as they neared the crossing. They also stated that the train came coasting in without making any noise and they did not hear its approach; that no warning of its approach to the public crossing by sounding the whistle or ringing the bell was given.

Two other witnesses for the plaintiff testified that they saw the train in question just before the accident that night, and that the headlight on the engine was not burning and that no warning of the approach of the crossing was given either by sounding the whistle or ringing the bell.

On the other hand several witnesses for the defendant testified that the statutory signals for the crossing were given and were heard by them, although they did not see the train. A passenger on the train testified that the lights were burning in the coaches just as usual. The conductor, also, testified to this fact and stated further that the curtains to the windows were up. Several persons in Turrell testified that they saw the approach of the train and that the headlight was burning as usual. One witness stated that it had a headlight but that it was burning very dimly. The engineer and fireman both testified that they did not see the automobile until it was too late to stop the train before striking it. They testified that they did all in their power to stop the train as soon as they saw the automobile and blew two short blasts of the whistle to warn plaintiff of the nearness of the train.

It was shown by the plaintiff that his automobile was an eight cylinder Peerless which he had owned a couple of months and which cost him $ 2,379.26. It cost plaintiff $ 986.61 to have his automobile put in as good condition as it was before the accident.

The jury returned a verdict for the plaintiff for $ 500 damages to himself and $ 986.61 damages to his automobile. From the judgment rendered, the defendant has appealed.

Judgment affirmed.

W. F. Evans and W. J. Orr, for appellant; Berry & Wheeler, of counsel.

The case should not have been submitted to the jury. A verdict for appellant should have been directed under the undisputed evidence and physical facts showing appellee's contributory negligence.

Before going on the track appellee should have looked and listened and if necessary stopped his car. 54 Ark. 431, 16 S.W. 161 65 Ark. 235, 45 S.W. 548; 69 Ark. 135, 62 S.W. 64; 76 Ark. 225, 88 S.W. 911; 78 Ark. 355, 93 S.W. 757. The duty to stop, look and listen must be performed at such a time and place with reference to the situation involved as will enable the traveler to accomplish the purpose the law had in view in imposing the duty upon him. 117 Ark. 464. When the injured party had such opportunity and he could not have failed to discover his peril had he used due care, then he will be deemed to have seen and heard the train. 99 Ark. 170; 78 Ark. 520; 62 Ark. 156; 33 Cyc. 1117; 73 Cal. 137; 69 P. 582; 79 P. 999; 53 P. 651; 83 P. 441; 72 N.E. 1053; 14 N.E. 737; 57 N.W. 661; 33 S.W. 645; 162 Mo. 569; 25 N.Y.S. 1009; 70 N.E. 68; 150 Pa. 386; 58 N.W. 393; 139 F. 639; 92 P. 687; 174 P. 819.

The statutory signals were given, the coaches were properly lighted, the headlight was burning, and appellee should have discovered the train in time to have avoided injury. The injury was the result of appellee's own negligence.

L. C. Going, for appellee.

The cause was properly submitted to the jury. Where the evidence is conflicting as to whether a traveler at a public crossing who was injured, looked and listened for an approaching train, and continued to exercise that vigilance, this presents a question for the jury. 101 Ark. 315; 142 S.W. 499; 200 S.W. 1000.

The cases relied on by appellant in 99 Ark. 170, 78 Ark. 520, 94 S.W. 617, and 62 Ark. 158, 34 S.W. 545, do not apply to the facts in this case.

Appellant failed to keep a proper lookout and to give the statutory signals and also violated Section 8132, Kirby's Digest, providing that engines should be equipped with a 1,500 candle power electric light. It is liable under the following cases: 110 Ark. 444, 162 S.W. 51; 166 S.W. 568; 112 Ark. 477; 125 S.W. 120.

Appellee's testimony was not contradicted by the physical facts.

OPINION

HART, J. (after stating the facts).

The only assignment of error relied upon for a reversal of the judgment is that the evidence is not legally sufficient to warrant the verdict. The deficiency in this respect claimed by the counsel for the defendant is, that the testimony of the plaintiff was contrary to the physical facts and that the court should have directed the jury to have returned a verdict for the defendant. Under the settled rules of this court, we must uphold a verdict on appeal if there is any substantial evidence to support it. Where the facts are undisputed and by applying to them the well-known laws of nature or the physical facts, it is...