Tiffin v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 24 February 1906
• Citation: 93 S.W. 564,78 Ark. 55
• Parties: TIFFIN v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

93 S.W. 564

78 Ark. 55

TIFFIN v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

February 24, 1906

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge affirmed.

STATEMENT BY THE COURT.

This is an action brought by Mrs. E. E. Tiffin, as administratrix of the estate of her son, James Roy Tiffin, deceased, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for the killing of said decedent. Two causes of action are set forth in the complaint in different paragraphs, one to recover for pain and suffering endured by the deceased, and the other to recover damages sustained by the plaintiff as next of kin by reason of loss of the earnings of her son.

A trial of the cause before a jury resulted in a verdict in favor of the defendant, and the plaintiff appealed.

Deceased was thirteen years of age, and is proved to have been exceptionally bright and intelligent for his age. He was run over and fatally injured by a train at the crossing of Newton Avenue, one of the principal thoroughfares in the city of North Little Rock. The defendant has two tracks crossing Newton Avenue at the place where the injury occurred, one of which was the main track and the other a switch track, and at all hours of the day there were engines and trains passing at that place. It is alleged that, by reason of the great number of trains passing over the tracks at said crossing and the number of people traveling along the avenue, the crossing was a particularly dangerous one. Negligence of the defendant contributing to the injury is alleged in the following particulars: (a) In the failure of the employees operating said train to ring the bell and blow the whistle as said train approached the crossing; (b) in not having gates at said crossing to keep the traveling public from crossing said tracks while trains were being moved; (c) in not having said crossing properly guarded and watched; and (d) in the fact that the flagman kept by the defendant at said crossing was not at his post.

The answer contained specific denials of all the charges of negligence, and alleged that the injury was caused by the contributory negligence of the person injured.

Newton Avenue runs nearly due north and south, and the railroad track intersects it diagonally, running northwest and southeast. Deceased was injured about noon. He approached the crossing from the west, when it was blocked by a slowly-moving freight train going southeast on the track nearest to him, and stopped within a few feet of the train to wait for it to pass. As soon as the rear end of the last car had passed the point where he was standing, ten or twelve feet, he crossed the first track, and, as he attempted to cross the next track, he was run over by the tender of a backing engine, which was moving at a rapid speed in the opposite direction.

The testimony was conflicting as to whether or not the bell or whistle was sounded on the engine. No gates or other barriers were maintained by the defendant at the crossing, but a watchman or flagman was kept posted there, whose duty it was to flag trains and to warn passing travelers of the approach of trains. The testimony tended to show that at the time of the injury the flagman on duty was on the opposite side of the street from deceased, where he had gone to warn or stop a man in a wagon who was attempting to cross. Deceased had a bicycle, and was observed with it standing by his side while he was awaiting the passage of the first train. A witness testified that he walked across the tracks, rolling the bicycle along by his side. The flagman and the fireman on the engine testified that deceased was riding the bicycle when he attempted to cross, and the latter said that deceased fell from the bicycle on the track.

Judgment affirmed.

J. H Harrod, for appellant.

1. The court erred in refusing testimony to show that the crossing was a dangerous place, and that the precautions taken by the company were insufficient. 110 U.S. 47.

2. It was error to refuse the sixth instruction asked by plaintiff. 144 U.S. 419; 86 Ky. 578; 35 L. R. A. 155.

3. The duty to stop, look and listen is not absolute and imperative. It is sometimes for the jury to say whether the failure to look and listen is excusable. 65 Ark. 235. See also 2 Wood's Ry. Law, 1313, 1314 and 1318.

B. S Johnson and J. E. Williams, for appellee.

1. The witness having detailed the facts as to the conditions existing at the crossing, it was for the jury to determine whether it was dangerous, and the opinion of the witness was properly excluded. 56 Ark. 612.

2. The sixth instruction confined the jury to one specific question and the ninth, given at plaintiff's request, fully covered the question. Plaintiff can not complain. 67 Ark. 532.

3. That it is the duty of one approaching a railroad crossing to look and listen for approaching trains is settled. 65 Ark. 238; 76 Ark. 224; 69 Ark. 135; 54 Ark. 431; 62 Ark. 156. Appellant can not complain that instructions were not sufficiently specific without having made request for modification or more specific charge. 56 Ark. 602; 69 Ark. 637; 65 Ark. 619; Ib. 255; 73 Ark. 535; Ib. 594; 56 Ark. 602.

OPINION

MCCULLOCH, J., (after stating the facts.)

1. Error of the court is assigned in its refusal to give to the jury the sixth instruction asked by appellant, which is as follows:

"If you find from the testimony that the crossing at which deceased received his injuries was so dangerous that it was necessary for the safety of travelers on the street for the railroad company to keep gates at said crossing, you are instructed that a failure to keep gates at such crossing was negligence. And if you find from the evidence that there were no gates at said crossing, and further find from the evidence that such failure to keep gates was the cause of James Roy Tiffin's injury and death, or find that if there had been gates at said crossing he would not have been injured, your verdict will be for the plaintiff on both causes of action, unless the deceased was guilty of contributory negligence."

We do not find it necessary to determine whether or not this instruction contained a correct statement of the law applicable to the case, inasmuch as we conclude that the giving of the ninth instruction asked by appellant covered the point contended for, and all prejudice was removed thereby. That instruction is as follows:

"If you find from a preponderance of the testimony that it was necessary to protect the public traveling on Newton Avenue for the defendant to keep said crossing watched and guarded, and if you find from the preponderance of the testimony that the defendant did not exercise reasonable care to keep the crossing watched and guarded, and you further find from a preponderance of the testimony that the injury and death of Roy Tiffin was caused by the negligence of the defendant in not exercising reasonable care to have said crossing properly watched and guarded, you will find for the plaintiff on both causes of action, unless the deceased was guilty of negligence that contributed to his injury and death."

We think that the above instruction fully placed before the jury the measure of the duty of the railway company, and that appellant was not prejudiced by the refusal to give the sixth instruction. The instruction given permitted the jury to say, from the testimony, that it was necessary, in order to protect travelers on the street from the danger of passing trains, that the company should have provided gates or other barriers or watchmen to flag trains and warn travelers, and that the failure to provide either or all of those means of protection was negligence. Therefore, no error was committed in refusing to instruct the jury specifically that the failure to provide gates amounted to negligence if gates were necessary to the protection of travelers. St. Louis, I. M. & S. Ry. Co. v. Baker, 67 Ark. 531, 55 S.W. 941.

2. It is also contended that the court erred in giving the following instruction, and others of like import, at the request of the defendant:

"5. It is the duty of a person approaching a railroad crossing to look and listen for approaching trains. This duty requires him to look in every direction from which he knew a train might approach, and continue on his guard until the danger is passed; and when, by the due exercise of care in this respect, the danger could have been discovered and avoided, no recovery can be had. Therefore, if you find from the evidence in this case that the plaintiff's intestate, Roy Tiffin, started and went onto the crossing without looking in the direction from which the train came after he started to go across the track, when by looking he could have seen the train approaching and avoided the injury, then he was guilty of contributory negligence, which bars a recovery, and your verdict must be for the defendant."

It is urged that these instructions improperly declared it to have been the absolute and imperative duty of deceased to look and listen for the approach of another train before going upon the track, and that it was properly a question of fact for the determination of the jury whether under the...