Thompson v. Carley, 12676.

Decision Date14 February 1944
Docket NumberNo. 12676.,12676.
PartiesTHOMPSON v. CARLEY.
CourtU.S. Court of Appeals — Eighth Circuit

Harry L. Ponder, of Walnut Ridge, Ark. (Thomas B. Pryor, of Fort Smith, Ark., on the brief), for appellant.

S. L. Richardson, of Walnut Ridge, Ark. (Frank Sloan, of Jonesboro, Ark., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

WOODROUGH, Circuit Judge.

This is an appeal by Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, defendant, from a judgment for damages for personal injuries recovered by Eddie Carley. The complaint alleges that plaintiff was struck by defendant's train and injured while walking between the rails of the railroad track; that defendant was negligent in the operation of its train in that its employees failed to warn plaintiff of its approach; that the train was operated at an excessive rate of speed, and that by keeping a proper lookout defendant's employees could have discovered plaintiff's peril in time to have avoided injuring him.

In its answer, the defendant specifically denied each and every allegation of negligence, alleged contributory negligence of plaintiff as a complete defense, alleged plaintiff was a trespasser, and, by amendment alleged that plaintiff's intoxicated condition contributed to his injuries.

The judgment was rendered for plaintiff by the district court, sitting without a jury, and the controlling question is whether the evidence was sufficient to sustain the recovery under the provisions of the Arkansas "Lookout" statute, Section 11144, Pope's Digest, which reads as follows:

"Duty of trainmen — burden of proof. It shall be the duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed."

Defendant maintains a system of trackage extending in a general north and south direction through the town of Hoxie in Arkansas. The accident occurred in the southern part of the town where defendant has three parallel tracks separated from one another by a distance of seven feet. The passing track is in the middle and those on the outside are main line tracks. U. S. Highway No. 67 is located about 60 feet to the west of the tracks and parallels them. The business district of Hoxie is also to the west, and plaintiff's home is east of the tracks. The cafe of Joe Richardson lies slightly below Hoxie's main business district and between the highway and railroad tracks.

Plaintiff was the only witness to the accident. According to his own account, he left the Richardson cafe, where he had been drinking beer, at about one a.m., on November 5, 1941, and started home down the highway. It was cloudy, misting and "sort of" foggy. Plaintiff is approximately six feet tall, and was dressed in a yellow or light brown hunting jacket and trousers. After traveling along the highway for three blocks, he turned eastward toward the tracks, walked across a log eight inches in width spanning a ditch adjacent to the railroad right-of-way, and proceeded south along the edge of the west main track for about two blocks before cutting diagonally across the tracks in a southeasterly direction. He passed over the west main track and the passing track and then turned down the middle of the east main track. Before crossing the west tracks he had looked to the north without seeing headlights or anything to indicate to him the approach of a train, but did not look back prior to walking down the middle of the east main track. After walking 75 to 100 feet he heard the noise of wheels on the rails and glanced back. When he first saw the train it was 15 feet to the north and traveling about 35 miles per hour. He saw no headlights, but was not prepared to state that the dim lights were not on. No warning whistle or bell was sounded to apprise him of impending danger. He attempted to jump from the track but was struck by the train and knocked unconscious before he could get clear. A swing brakeman on a train traveling in the opposite direction at about the time of the accident testified that he heard a noise, looked around and saw Carley "lying just off the track with his head south and his feet to the north, parallel with the tracks at the end of the ties. He Carley was on the east side of the east track lying on his stomach." Both of Carley's arms were broken and his shoulder blade injured.

The engineer and fireman of the train which struck Carley were not aware of the accident. Their testimony is to the effect that they were "dragging along" at about eight to ten miles an hour under block signals to permit an approaching train to get into clear on the passing track and that this was their train's speed at the place of the accident. That the engine was equipped with regular lights (1500 candlepower), which were burning brightly, and two additional green lights; that a whistle was blown and a bell sounded at the site of the accident; that they kept a good lookout; that the night was foggy and misty; that if Carley had been standing on the track they could have seen him for a distance of 150 to 200 feet with the headlights burning brightly, and from 50 to 75 feet with the lights dimmed, but that they could not have seen him until they were extremely close if he had been lying near the track.

The trial court's findings included the following:

"4. On the night of November 4th, 1941, or early morning of November 5, 1941, the plaintiff, Eddie Carley, was a trespasser upon the tracks of the railroad operated by the defendant Trustee, and was at that time struck by a train operated by the agents, servants or employees of the defendant Trustee, and was severely injured by said striking.

"5. The plaintiff, Eddie Carley, was upon said tracks in plain sight of the engineer and fireman of the train which struck him, and the said engineer and fireman * * * could have seen him and should have seen him, had they been keeping a lookout as required by the Statutes of Arkansas.

"6. The engine pulling the train which struck and injured the plaintiff, Eddie Carley, was properly equipped with an electric headlight of more than fifteen hundred candlepower, which would have sufficiently lighted up the track for said agents * * * to have discovered the plaintiff in a place of danger, had they kept a proper lookout as required by the Statutes of Arkansas.

"7. The * * * engineer and fireman * * * did not keep a proper lookout as required by the Statutes of Arkansas, and their failure to keep such lookout was the direct and proximate cause of the injury to the plaintiff, Eddie Carley.

"8. The plaintiff, Eddie Carley, was severely and permanently injured by reason of the negligence of the agents, servants and employees, in failing to keep a proper lookout, as required by the Statutes of Arkansas, aforesaid."

On this appeal defendant contends that plaintiff failed to establish facts which would give rise to a reasonable inference that a lookout had not been kept, that...

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