St. Louis-San Francisco Railway Co. v. Beasley

• Decision Date: 19 April 1943
• Docket Number: 4-7026
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BEASLEY
• Court: Arkansas Supreme Court

170 S.W.2d 667

205 Ark. 688

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BEASLEY

4-7026

Supreme Court of Arkansas

April 19, 1943

Appeal from Mississippi Circuit Court, Osceola District; Neil Killough, Judge; affirmed.

Judgment affirmed.

E. G Nahler, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.

Bruce Ivy, Myron T. Nailling, W. H. Fisher and Wils Davis, for appellee.

OPINION

MCHANEY, J.

Three separate actions were brought by appellees against appellants, who are the St. Louis-San Francisco Railway Company and its trustees, in two of which appellee, T. R. Willett was a defendant, to recover damages for personal injuries sustained by two of them and for the death of four of them, caused by a collision at a crossing between a truck in which they were riding and a fast passenger train of appellants, on September 22, 1941. One of such actions was brought by appellees, Fred Beasley and his wife, Louise Beasley, for personal injuries to Mrs. Beasley, and for the death of his three children, in which Willett was a defendant with appellants. Another was by Roy Beal as administrator of the estate of his wife, Ollie D. Beal, who was killed, to recover for her conscious pain, for the benefit of her estate, her heirs at law and next of kin and for himself as her husband. Willett and appellants were defendants in this action. T. R. Willett, owner and operator of the truck, brought suit against appellants for personal injuries suffered by him.

The negligence alleged and relied on in each complaint was, as to appellants, failure to give the statutory signals, to keep a constant lookout and discovered peril under the lookout statute, § 11144 of Pope's Digest. As to Willett, in the two suits in which he was a defendant, negligence was alleged in certain respects, but as the verdict and judgment in those cases were in his favor, we do not set them out, nor his answer thereto. Appellants answered the actions with an admission of the collision and the resulting injuries and deaths, but denied any negligence in the respects alleged, pleaded gross contributory negligence of all parties, a joint mission, and that the negligence of Willett should be imputed to the others. Trial of the consolidated cases resulted in verdicts and judgments against appellants only as follows:

For Fred Beasley, loss of services of three

children

$ 3,000

For Fred Beasley for injuries to his wife

2,000

For Louise Beasley

10,000

For Roy Beal for death of wife

5,000

For T. R. Willett

2,000

This appeal followed to reverse said judgments.

1. It is first insisted that the court erred in refusing to direct verdicts in favor of appellants. Many of the facts are not in dispute, some of which are: Highway 61 is of concrete and runs approximately north and south, and parallel with and just west of the railroad tracks of appellants. T. R. Willett owns and operates a cotton farm about one-half mile east of the railroad and about one mile south of a station called Frenchman's Bayou. He has lived on and operated this farm for the past 16 years, is a former railroad man and lost an arm in that service. There is a graveled roadway leading from highway 61, across the railroad tracks to his farm, and this road is his only means of ingress and egress to and from his farm with his truck or car, over which he has passed many hundreds of times. There is some dispute as to whether this road approaches and crosses the tracks at right angles or at an obtuse angle, but for the purpose of this opinion we assume that the crossing road runs slightly north of east in crossing the tracks from the highway which is about 90 feet west of the tracks. September is cotton picking time in Arkansas, and in the early morning of September 22, 1941 Willett picked up Louise Beasley and Fred Beasley's three children by a former wife, aged 13, 11 and 8 years, and Ollie Beal, all at Joiner, some few miles north of Frenchman's Bayou, and was taking them in his truck to his farm to pick cotton for him. He proceeded south along the highway to the crossing road, referred to as the Willett Crossing, where he turned east to go over the tracks and to his farm. The tracks are on an embankment about 6 feet higher than the land on either side, and as he left the highway he went over a slight depression in the road before reaching the incline to pass over the tracks. He was proceeding slowly and he says he looked and listened, changed to low gear and proceeded up the incline and did not see or hear the train until he was on the tracks and had nearly passed over when the rear end of his truck was struck by the train. Mrs. Beasley was seated in the cab of the truck with Willett and she says she neither saw nor heard the train until it was right on them. Mrs. Beal and the Beasley children were riding in the bed of the truck behind the cab, and the four of them were instantly killed. Willett and Mrs. Beasley were severely and painfully injured. The train was traveling at 70 miles per hour. The evidence regarding the giving of signals for the crossing is in sharp dispute. A number of witnesses for appellees testified that the bell was not ringing, and that the whistle was not sounded until the moment of the collision. A number of witnesses for appellants said the crossing signals were given. Willett testified that bushes 8 or 10 feet high to the north prevented him from seeing the train when he started up the incline; that he brought his truck almost to a stop, looked, listened, neither saw nor heard the train and proceeded across, having to give some attention to the operating of his truck to keep it on the road and to watch for traffic that might be approaching from the other side of the tracks; that he changed to high gear when he got on top of the embankment, and, as he proceeded across, he saw the train too late for him to stop; and that the train operatives did nothing to check the speed of...