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

• Decision Date: 29 January 1940
• Docket Number: 4-5760
• Citation: 136 S.W.2d 158,199 Ark. 767
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. MANGUM
• Court: Arkansas Supreme Court

136 S.W.2d 158

199 Ark. 767

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. MANGUM

4-5760

Supreme Court of Arkansas

January 29, 1940

Appeal from Crawford Circuit Court; J. O. Kinkannon, Judge reversed.

Judgment reversed and cause remanded.

J W. Jamison, Paul E. Gutensohn and Warner & Warner, for appellants.

Howell & Howell, for appellee.

OPINION

MEHAFFY, J.

The appellee, W. J. Mangum, about August 8, 1938, was engaged in hauling rock with a wagon and team along and over a certain highway crossing of appellant's railroad going in a westerly direction and upon reaching said crossing of the highway with appellant's railroad, and in attempting to cross said. crossing which he alleged was kept and maintained by said railroad in a very negligent, dangerous and hazardous condition, and while said team was on appellant's track and highway crossing, a certain clevis connecting the singletree with the doubletree on said wagon broke and came loose and the said team was unable to pull said wagon over and across said railroad, and while the appellee and his companion were trying to get the team off the said railroad crossing, appellant's passenger train, traveling in a southernly direction, approached said crossing with said highway without ringing the bell, blowing the whistle or giving any signal or warning whatever of such approach, and he alleged that in approaching said crossing the appellant's engineer and fireman operated said locomotive at a careless and negligent rate of speed, to-wit, 50 miles an hour, and that they carelessly and negligently failed to exercise ordinary and reasonable care to keep and maintain a reasonable lookout for persons and property, and particularly appellee and his wagon and team he was using in approaching in and about and on said crossing, so that as a result thereof, the said team and wagon were struck by said locomotive so operated and the appellee seriously and permanently injured. He alleges that his injuries and damages were caused by the carelessness and negligence of appellants in the following particulars That the servants, agents and employees of appellant carelessly and negligently approached said crossing on said track the same being an extremely dangerous crossing, operated said locomotive and train without exercising ordinary and reasonable care to ring the bell or blow the whistle or otherwise give a signal or warning of the approach of said train to said crossing, and carelessly and negligently approached said crossing without exercising ordinary and reasonable care to keep and maintain a lookout for persons and property, and particularly for appellee and the team and wagon which he was driving; that they carelessly and negligently approached said crossing at a reckless rate of speed, 50 miles per hour, and carelessly and negligently approached and ran into said dangerous crossing without exercising any precaution for the protection of persons and property approaching on said highway. On account of the negligence of appellants the team and wagon being used and driven by appellee was struck and collided with the locomotive, and appellee was thrown into a ditch beside the track and the team was knocked and thrown against and upon him with great force and violence, thereby seriously and permanently injuring him. Appellee was thrown into a ditch beside the track and the team was thrown upon and against his body, and the bones, flesh, tendons, muscles and ligaments in and about appellee's back and spine were fractured, crushed, injured and torn; his face and head and parts thereof were cut, bruised and damaged; his back and spine and entire nervous system were shocked and injured. He prays for damages in the sum of $ 3,000.

Appellants filed answer specifically denying all the material allegations of the complaint, and pleading specifically the contributory negligence of appellee.

There was a verdict and judgment for the appellee and the case is here on appeal.

Appellee testified that on August 8th he was hauling rock; that the railroad maintains a crossing, and he had made three loads and was crossing with the third load at the time of the collision; the crossing was fenced and had gates on both sides, and on one side dirt was thrown up to the end of the ties; as he was going across the crossing he dropped down in a sink hole about the time the wheel hit; the railway crossing was down and water had been standing there; the wagon dropped down in the hole against the rail, and when it did it broke a clevis on the left-hand horse and it could not pull the load; witness backed up to fix it, gave the horse about a foot clearance, and while he was working there the train came around the curve; it did not whistle and did not ring a bell until it gave five blasts and then it rang the bell; it did not apply brakes until it hit the mare; when he discovered the train coming he ran to the horses' heads and grabbed them with the intention of getting them in the clear; they broke the wagon tongue out and he was bringing the horses around to his right; the train hit the left- hand mare and knocked her over the tongue and over the other one and on top of appellee; he was trying to get them in the clear of the train at the time; was about five feet from the rail at the time the train hit the mare; was in the ditch and the mare was between him and the track at the time; one mare was killed. He then describes his injury. A statement made by appellee after the accident was introduced.

The testimony also showed that there was a curve that the train passed before it reached...