St. Louis Southwestern Ry. Co. v. Robinson

• Decision Date: 16 December 1957
• Docket Number: No. 5-1410,5-1410
• Citation: 308 S.W.2d 282,228 Ark. 418
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY et al., Appellants, v. C. A. ROBINSON, Appellee.
• Court: Arkansas Supreme Court

Page 282

308 S.W.2d 282

228 Ark. 418

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY et al., Appellants, v. C. A. ROBINSON, Appellee.

No. 5-1410.

Supreme Court of Arkansas.

Dec. 16, 1957.

Wilbur H. Botts, DeWitt, Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellants.

William C. Gibson, Stuttgart, George E. Pike, DeWitt, for appellee.

GEORGE ROSE SMITH, Justice.

This is an action for personal injuries sustained by the appellee in a collision between his pick-up truck and a freight train which was standing still at a public crossing just inside the city of Gillett. The plaintiff's truck struck the fifth or sixth car of the eleven-car train. In appealing from a verdict and judgment for $7,500 the railroad company and its two employees contend that they were entitled to a directed verdict, and, if not, that the court erred in its instructions to the jury.

The accident happened shortly after dark on the evening of October 19, 1955. Robinson had been in town and was returning to his home, which is about a city block north of the railroad crossing. He used this highway about six times a day and was of course familiar with the crossing. As he traveled north toward his home his approach to the railroad tracks was, for the last few hundred feet, along a straight level road. He testified that he was driving at about 25 or 30 miles an hour, with his headlights on their low beam. He did not see the train until he was 'right upon it.' He says that there was no light of any kind to warn him and that the gravel car which he hit was about the same color as the pavement. A neighbor who lives near the crossing testified that he did not hear the train whistle and that when he looked out of his window upon hearing the crash he did not see any light at the crossing.

The testimony of the railroad crew shows that the train was being backed across the highway in a switching operation. When the lead car reached the crossing a brakeman dropped off and stood in the road with an electric lamp. This witness testified that he saw the lights of Robinson's truck when it was some 300 or 400 feet away. He signaled continuously by waiving his light, but the truck came on at a speed of about 50 miles an hour and, with no reduction in speed, hit the train after the witness had jumped aside at the last moment. The engineer testified that upon seeing the brakeman's frantic signals and the approaching vehicle he stopped the train and gave repeated short blasts of his whistle until the truck hit the train. The plaintiff concedes that the train was stationary when he drove into it.

From the conflicting testimony the jury doubtless concluded that no signals of any sort were given to warn Robinson of the train's presence at the crossing. The appellants contend that the matter of signals became unimportant when the train occupied the crossing; they cite several cases in which we held that a railroad company was not liable to a motorist who drove his vehicle into a train that was already obstructing the highway. Cases similar to this one include Fleming v. Missouri & Ark. Ry. Co., 198 Ark. 290, 128 S.W.2d 986, and Lloyd v. St. Louis Southwestern Ry. Co., 207 Ark. 154, 179 S.W.2d 651.

All the cases cited were decided under the comparative negligence act which applied only to railway companies and prevented a recovery if the plaintiff's negligence exceeded that of the defendant. Ark.Stats.1947, § 73-1004. We did not say in those opinions that the railroad company was entirely free from fault; we merely held that the plaintiff's negligence was greater than that of the defendant and therefore prevented a recovery. This point was fully explained, after a thorough review of the decisions, in Hawkins v. Missouri Pac. R. Co., 217 Ark. 42, 228 S.W.2d 642, where we held that the unusual fact situation presented a jury question concerning the comparative negligence of the parties.

The cases mentioned do not control this one, which arose after the enactment of Act 191 of 1955 and was tried before that act was repealed by Act 296 of 1957. Ark.Stats §§ 27-1730.1 and 27-1730.2. The 1955 statute differs from the railroad comparative negligence law in that it eliminates the requirement that the plaintiff's negligence may not exceed that of the defendant. Hence, if the 1955 act applies to this case, the appellants are not entitled to a reversal and dismissal merely upon a showing that Robinson's negligence was greater than their own. Upon that finding the plaintiff's recovery would simply be reduced in the proportion that his negligence bore to the total negligence in the case.

We hold that Act 191 impliedly repealed the railroad comparative negligence act and applies to this litigation. As a general rule a general act does not repeal...