Wisconsin & Arkansas Lumber Co. v. Brady

• Decision Date: 05 March 1923
• Docket Number: 212
• Parties: WISCONSIN & ARKANSAS LUMBER COMPANY v. BRADY
• Court: Arkansas Supreme Court

248 S.W. 278

157 Ark. 449

WISCONSIN & ARKANSAS LUMBER COMPANY v. BRADY

No. 212

Supreme Court of Arkansas

March 5, 1923

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed in part.

Judgment affirmed in part and reversed in part.

Henry Berger and Mehaffy, Donham & Mehaffy, for appellants.

D D. Glover, for appellees.

OPINION

HUMPHREYS, J.

Appellee Mrs. Hosea Brady, as mother and next of kin to Louis Lindel Brady, recovered damages in Hot Springs Circuit Court against appellants, in the sum of $ 500, for injuries received by her child; and appellee, Hosea Brady, recovered damages against said appellants in the sum of $ 50 for injuries to his automobile, on account of alleged negligence of appellants through their servants. The particular acts of alleged negligence was the backing of a train of flat-cars across a public road, upon which appellees were traveling in an automobile, without warning them of its approach, and which train was obstructed from their view by an office, other buildings, a fence and hedgerow, until within ten or twelve feet of the track, which train collided with the automobile and caused the injuries complained of.

Appellants filed an answer denying the allegation of negligence, and pleading, by way of further defense, that the injuries were the direct result of negligence of appellees in driving the automobile onto and against the flat-cars, without taking any care or precaution to look or listen, or, if necessary in the exercise of ordinary care, to stop for that purpose.

An appeal from the judgments has been duly prosecuted to this court, and the correctness of the judgments is assailed by appellants because the court gave certain instructions alleged to be erroneous, and refused to give others alleged to be correct, and erroneously modified others before giving them. The facts as reflected by the record are in substance as follows: two railroad tracks of appellant, thirty feet apart, running north and south crossed the public road at right angles where the alleged injuries occurred. Buildings between these tracks were on both sides of the public road. The office, fence and hedgerow were on the south side, and the mill and lumber yard were on the north side. Appellees were going toward the east in the direction of Malvern, in a Ford car owned by Hosea Brady. Mrs. Hosea Brady was driving, and her husband was sitting beside her holding the baby, then twenty- two months old. According to their evidence, they were driving at the rate of six or eight miles an hour, and, on account of the obstructions on the south side of the road, did not see or hear the train until within ten or twelve feet of the track, at which time the train rapidly approached the crossing and collided with their car before they could stop it; that, as soon as they discovered the train, Mrs. Brady put on the brake and turned off the gas, and Mr. Brady turned off the engine; that the train was running much faster then than they had been traveling, and when they cut all the power off the automobile it reduced the speed enough to allow the front end of the flat-car to get by them some six feet before the collision occurred; that Mrs. Brady was accustomed to driving the car, and that she was looking to the front, as usual, when approaching the crossing.

According to the testimony of appellants, the flat-car was being backed across the road into the mill yard to place it for loading; that the train was moving about four to six miles an hour; that appellees were discovered forty or fifty feet from the crossing as they approached it; that the front end of the flat-car was then about thirty feet from the crossing; that immediately upon discovering them the engineer shut the throttle, plugged the air valve and threw back the reverse lever; that, considering the speed of the train and other conditions, it could have been stopped within a distance of ten or twelve feet; that the reason the train reached the crossing first was because it was nearer than the automobile to the crossing; that the tracks did not cross a public highway, but a road that was traveled by the people a good deal.

The undisputed testimony showed that the train was backed across the road crossing, which had been generally traveled by the people for many years, without giving any warning whatever of its approach, and without having any one on the front end of the flat-car to watch and give signals.

At the request of appellants, the jury was permitted to go to the scene and approach the crossing in automobiles as an engine was backing a flat-car up the track toward the road...