Thompson v. Carley, 12676.
Decision Date | 14 February 1944 |
Docket Number | No. 12676.,12676. |
Parties | THOMPSON v. CARLEY. |
Court | U.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.
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:
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 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:
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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