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

• Decision Date: 24 October 1938
• Docket Number: 4-5197
• Citation: 120 S.W.2d 567,196 Ark. 964
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, ET AL. v. ROBINSON
• Court: Arkansas Supreme Court

120 S.W.2d 567

196 Ark. 964

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, ET AL. v. ROBINSON

4-5197

Supreme Court of Arkansas

October 24, 1938

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

Judgment affirmed.

J. W Jamison and Warner & Warner, for appellants.

Partain & Agee, for appellee.

SMITH J. HUMPHREYS and MEHAFFY, J.J., dissent.

OPINION

SMITH, J.

This is an appeal from a verdict and judgment awarding appellee damages for a personal injury resulting from the striking of his left hand by one of appellant's locomotive engines. The cause was tried upon the sole issue that the railway company had failed to keep the efficient lookout required by the statute, which, if it had been kept, would have averted appellee's injury. No other question of negligence was submitted to the jury.

The testimony was to the following effect. Appellee, an elderly man, was in Van Buren on the 18th day of February, 1937, and wished to return to his home at Schaberg, a station on appellant's railroad north of Van Buren. He lacked sufficient funds to pay the railroad fare the entire distance from Van Buren to Schaberg, so he started walking on the railroad tracks from Van Buren to Schaberg, with the view of boarding the train at Meadows, an intervening stop. He was under the impression that Meadows, which is about six miles north of Van Buren, was a flag stop for the train he expected to take to Schaberg, and while it appears that Meadows was not a flag station for the train appellee proposed to take, it is insisted by appellee that this fact is unimportant, a view in which we concur.

The train in question was due to pass Meadows at 6:32 p. m., but did not pass that place until 6:42, making the train ten minutes late. Appellant insists that the testimony does not show that the train was late, and that in any event it was a question of fact whether this was true. The train was delayed at the Missouri Pacific inter-locker for ten minutes at Van Buren, and the lost time had not been made up when the train passed Meadows, On account of numerous curves the train ran under restrictions between Van Buren and Meadows, and had not been running a sufficient time or distance in which to make up the lost time before reaching Meadows.

The complaint alleged that appellant arrived at Meadows about 6:45 p. m., and there was no modification of this allegation, nor did appellant offer any testimony to contradict it. We, therefore, treat the fact as undisputed that the train passed Meadows about 6:42 p. m., and the engineer testified that it was then traveling at a speed of about 35 miles per hour.

The testimony is conflicting as to whether it was then dark. Appellee arrived at the home of a Mr. Isom, where he stopped, and the testimony of Isom and his wife is to the effect that he left their place about 5:30 p. m.

Appellee had left Van Buren at about 2 p. m., and was evidently walking very leisurely. It was about a mile and a half from the Isom home to Meadows. The Isoms testified that it was not then dark, nor was it dark when the train passed Meadows. Appellee testified that it was not dark when the train passed Meadows, and, when asked by his attorney, "Do you know how far you could have been seen on the track by any one on the engine?" answered: "A hundred yards."

W. C. Hickman, the Government meteorologist at Fort Smith, a city about eleven miles from Meadows, testified that February 18th was a cloudy day, and that the sun set at 6:04 p. m., and that darkness came about thirty minutes later. As an astronomical fact visibility must have been very low, if it existed at all, without the aid of the headlight of the train.

Appellee was asked if he knew the condition of the track before you get to Meadows for some distance as to its being straight, and he answered, "Comparatively straight." There was no testimony to the effect that the track was straight, appellee's testimony being that it was "Comparatively straight."

The engineer testified that ". . . A second curve is through a high rock cut to the right, and then a left curve, which continues up to the north end of the station platform at Meadows. The last curve is approximately 1,400 feet in length; it is an excessive curve, on which speed is restricted. There is no station at Meadows, only a gravel platform on the west side of the track near the end of the curve; no depot or shed of any kind, and the north end of the curve is about even with the north end of the station platform."

The engineer and the fireman both testified that they were in their respective and proper places on the engine. The engineer further testified that the headlight was burning as the train approached Meadows, but as they were taking a left-hand curve the headlight cut across the right-of-way fence; the rays did not go down the track, but were thrown out on the right-of-way, and as you move around the curve the headlight will not line up with the track until after the locomotive has passed the platform. The engineer did not see any one as the train approached Meadows. The fireman's testimony was to the same effect, and he saw no one on the track.

Appellee's version of the manner in which he was injured is as follows. After leaving the Isom home he walked on to Meadows, and the sun "Was about that high (indicating about eight inches on his walking cane). I walked back and forth there, and a cloud came up over the sun and hid it from me, and I walked back and forth there and waited for some bit, and finally I saw the light of the train back behind Frog Bayou, south of me, and...