St. Louis Southwestern Railway Co. v. Murphy

• Decision Date: 23 October 1916
• Docket Number: 221
• Citation: 188 S.W. 1180,125 Ark. 507
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY CO. v. MURPHY
• Court: Arkansas Supreme Court

188 S.W. 1180

125 Ark. 507

ST. LOUIS SOUTHWESTERN RAILWAY CO. v. MURPHY

No. 221

Supreme Court of Arkansas

October 23, 1916

Appeal from Pulaski Circuit Court; Third Division. G. W. Hendricks Judge; affirmed.

Judgment affirmed.

Edw. A Haid, F. G. Bridges and W. T. Wooldridge, for appellant.

1. The court erred in refusing to submit to the jury the duty of a traveler at a public railroad crossing or the question of his negligence in that regard. The amendatory act to the lookout statute, Acts 1911, p. 275, does not relieve a traveler from the duty to stop, look and listen for the approach of a train at a railroad crossing. 112 Ark. 542, 460; 117 Ark. 457, 463 464; 78 Ark. 355; 118 Ark. 36, 41.

2. The judgment is clearly excessive.

Geo. F. Jones and R. L. Floyd, for appellee.

The court's instructions follow the law as recognized by this Court in practically every case tried here on appeal since the amendment to the lookout statute. If there was any negligence on the part of appellee, which is not conceded, this would not relieve appellant of liability, if they failed to keep a lookout as provided under the law, and, had such lookout been kept, they could, by the exercise of ordinary care, have avoided injuring appellee. 113 Ark. 353; 112 Ark. 401; 110 Ark. 444; 116 Ark. 514; 123 Ark. 94; 108 Ark. 327, 334.

OPINION

SMITH, J.

Appellee recovered judgment for damages to compensate an injury sustained by him as a result of a collision between one of appellant's switch engines and his wagon in which he was driving at the time. The collision occurred at a crossing near the city of Argenta and as a result of it, in addition to his own injury, one of appellee's mules was killed and the other was injured and his wagon demolished. There was a judgment at the trial below in appellee's favor for $ 1,150.00, and appellant now says that, not only should no recovery whatever have been permitted, but that the recovery was for an excessive amount.

Appellant chiefly complains of the action of the court in refusing to charge the jury upon the subject of appellee's contributory negligence, and sets out in its brief a correct declaration of the law on this subject as it has been announced in many opinions of this court.

There is nothing in Act No. 284 of the Acts of 1911, page 275, commonly known as the "Lookout Statute," which changes the duty of either a traveler or a trespasser to exercise care for his own safety when crossing or when upon the railroad tracks, as that duty has been frequently declared by this court. And contributory negligence on the part of the traveler or the trespasser is still a valid and sufficient defense to a suit for damages for an injury unless--notwithstanding this contributory negligence--the operatives of the train discover or, in the exercise of ordinary care should discover, the presence and peril of the person injured in time to avoid injuring him by the exercise of reasonable care after the discovery of such peril.

The operatives of the train testified that appellee drove his wagon upon the track at...