St. Louis Southwestern Ry. Co. v. Evans

• Decision Date: 02 July 1973
• Docket Number: No. 73--29,73--29
• Citation: St. Louis Southwestern Ry. Co. v. Evans, 497 S.W.2d 692, 254 Ark. 762 (Ark. 1973)
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant, v. Trudie EVANS, Appellee.
• Court: Arkansas Supreme Court

Page 692

497 S.W.2d 692

254 Ark. 762

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant, v.Trudie EVANS, Appellee.

No. 73--29.

Supreme Court of Arkansas.

July 2, 1973.

Rehearing Denied Aug. 27, 1973.

Coleman, Gantt, Ramsay & Cox, Pine Bluff, for appellant.

McMath, Leatherman & Woods, Howard, Howard & Howard and Wilson & Hodge by Wm. R. Wilson, Jr., Little Rock, for appellee.

BROWN, Justice.

Appellee was seriously injured as a result of a collision between her automobile and appellant's train.Appellee was awarded a substantial judgment, the amount of which is not questioned.Appellant seeks reversal on the grounds that it was error to give AMI 1805(abnormally dangerous crossing); that the court also erred in giving AMI 1802(lookout); and that appellant was entitled to an instructed verdict.

Appellee lived approximately one mile on a gravel road from where the road crosses appellant's main line tracks and runs into State Highway 79 on the opposite side of the track.In proximity to the crossing the road curved to appellee's right.At a distance of forty-five feet from the tracks the road becomes perpendicular to the tracts.As she traveled along the road her vision to her right, from whence the train was coming, was somewhat obscured by shrubs and bushes and that condition existed until she reached the forty-five foot point to which we have referred.

AppelleeTrudie Evans had worked at a paper mill at Camden for many years.She was a frequent user of the gravel road and was on her way to work at the time of the accident on a clear afternoon.She testified that as she rounded the curve she could not see the railroad tracks looking to her right because of bushes and saplings along the fence rows both beside the gravel road and alongside the railroad right-of-way fence.She said that when she got into the forty-five foot area it was necessary to look over her right shoulder to see a train approaching from that direction.She said that as she approached the track she looked both directions and did not see the train.She said as she looked up and down the track her vision to her right was evidently obscured by the line of bushes.She asserted that she did not see or hear the train until a matter of seconds before she was struck.That is when, she said, she heard the whistle; she said she never heard a bell.Her car windows were rolled up.She said she came to a rolling stop near the edge of the fence line, and not seeing a train, she proceeded to drive accross the track very slowly.She said the impact rendered her unconscious.

Landal Evans, son of appellee, testified that he observed the premises around the crossing and that at the time of the accident the trees were budded and had small leaves on them.He testified that the vision of the crossing was obstructed by the growth of briars, vines, and small bushes which were along the sade of the road and on the fence row which parallel the tracks.

It was stipulated that an average of 115 cars passed over the crossing in one day and that two school buses crossed it twice daily.It was also shown that the number of trains passing the crossing was 22 per day on a 24 hour basis.

After being denied a motion for directed verdictthe appellant presented five witnesses.Locomotive engineer, J. A. Favor, testified that he was positioned on the right side of the engine going south (being the side opposite appellee as she approached the crossing); that fireman Motes and head brakeman Holladay were seated on the left side.'I have a throttle that controls the speed, the brake to regulate it with to stop the train, whistle cord, bell ringer and light switches.'He explained that as they approached the crossing there was a straight stretch of some two and a quarter miles and that the train was traveling approximately fifty miles per hour.'As you approach the crossing, there is a whistle board a quarter of a mile from the crossing.When I reached the whistle board as I approached this crossing I turned the bell on at the crossing board signal and started blowing the standard crossing whistle.'He testified that he did not see appellee's car until seconds before it was hit.He explained that the engine has a 'nose' on it that protrudes some twelve or fifteen feet from the engineer's seat and it obstructed his view as the train came into the crossing.'As I got real close to the crossing the fireman hollered 'look out for the car', and I applied the brakes in emergency.About the time I done that, well, I could see the hood part of the car was about the center of the engine there where I could see.'On cross-examination he said he was 'within seconds from the crossing' when the fireman warned him of the car, estimating the train to have been within fifteen feet of the crossing.

Fireman T. L. Motes, seated on the left side, testified he saw the car as it approached the crossing; that as appellee approached the crossing it appeared she slackened her speed as if she were going to stop; that as she got closer to the crossing he realized she was not going to stop and he then warned the engineer.He corroborated the engineer with respect to blowing the whistle and ringing the bell.When the train was stopped, this witness went back to the crossing and said he heard appellee moan that her brakes would not work.

Brakeman Louis Holladay, seated on the left and behind the fireman, said he saw appellee's car as it approached the curve and several feet before she reached the forty-five foot mark; that she slowly came up the incline in the road and he thought appellee was going to stop; and because he thought she was stopping the witness gave no warning when he first saw the car.He said the engineer was blowing the whistle and ringing the bell as they approached the crossing.

Witness R. A. Womble, a brakeman on the second engine, was seated on the side opposite appellee.He had no knowledge of the accident before it occurred.He went to the scene.He said appellee appeared unconscious but he heard her say her brakes failed.

Rev. James Kile lives in Shreveport and at the time of the accident he was driving alongside the train and in the same direction.It was stipulated that if present he would testify that the train was going approximately 50 miles per hour and that he heard the train whistle blowing for perhaps a quarter of a mile and up until the impact.He did not see the impact.It was also stipulated that there had been no other accident on this crossing for at least the past twenty years, there being no records of the railroad prior to that time.It was also agreed that appellee faced a wooden crossing sign as...