Wright v. Missouri Pacific Railroad Company
| Decision Date | 17 July 1926 |
| Parties | EVA M. WRIGHT, ADMINISTRATRIX, RESPONDENT, v. MISSOURI PACIFIC RAILROAD COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Butler County.--Hon. Chas. L Ferguson, Judge.
AFFIRMED.
Judgment affirmed.
James F. Green and J. C. Sheppard for appellant.
(1) The court erred in permitting counsel for respondent to single out one isolated statement on cross-examination of J. O Madison, fireman, on the train, when the whole of his testimony on the former trial had been reduced to writing and was present in court and could have been read to the jury. This was the same as though his deposition had been taken, and the question asked was one of the crucial points in the case as to when he discovered the peril of F. D. Wright in the automobile. Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226, 247, 237 S.W. 779; Slaughter v. Sweet & Piper Horse & Mule Co., 259 S.W. 131, 135. (2) The court erred in giving to the jury respondent's instruction No. 1 for the reason that it is broader than the Arkansas Lookout Statute, which requires the trainmen to keep a lookout for persons or property on the track. This instruction told the jury that, "The law required the employees in charge of defendant's trains to keep some one constantly upon the lookout for persons or property on or near the track, and failure to do so, if there was such failure, was negligence." Sec. 8568 C. & M. Digest, Statute of Arkansas. See copy of this section in plaintiff's petition. (3) The court erred in refusing to give to the jury instruction No. "8A" offered on behalf of appellant. Blytheville L. & A. S. Ry. Co. v. Gessell, 250 S.W. 881. (4) The court erred in giving to the jury respondent's instruction No. 1, and in refusing to give appellant's instruction No. 6A concerning the Arkansas Lookout Statute, for the reason that the evidence showed conclusively that a constant lookout was kept, and, therefore, there was nothing to base this instruction on. Gunn v. Hemphill Lbr. Co., 218 S.W. 978; Parker v. Drake, 220 S.W. 1000; McElvain v. Dorrah, 204 S.W. 824; Baker v. J. W. McMurray Const. Co., 221 S.W. 1070; Ostopshook v. Cohen Swartz R. & S. Co., 227 S.W. 642. (5) The court erred in refusing to give to the jury appellant's instruction No. 1A at the close of the plaintiff's case, and No. 2A at the close of the whole case in the nature of demurrers to the evidence, for the reason that the facts clearly showed that the negligence of F. D. Wright, the driver of the automobile, was of greater degree than the negligence of the agents and servants of the railroad company as a matter of law.
W. A. Welker, Wils Davis and J. T. Coston for respondent.
We will undertake to show: (1) That most of the evidence bearing on the question of negligence and contributory negligence was given by witnesses who testified with reference to a plat which the witnesses used to point out locations, distances, etc., all of which was plain, intelligible and forceful before the jury, but in the very nature of things such evidence, consisting of physical demonstrations and movements of the witnesses, cannot be brought before this court, and is not before this court for consideration. Therefore, the evidence is not all in the record, and this court will indulge the presumption that the evidence sustains the verdict. This proposition of law is well settled. Benton v. State, 30 Ark. 349; Fitzgerald v. LaPorte, 67 Ark. 265; Larson v. Railroad, 21 N.W. 836; Mining Company v. Stephenson, 30 P. 1098; Taylor v. Spears, 8 Ark. 436; Carroll v. Peake, 1 Peters 23; Garrity v. Hamburger Co., 28 N.E. 747; City of Covington v. Railroad, 20 S.W. 539; Casteel v. Casteel, 38 Ark. 481; Carpenter v. Ellenbrook, 58 Ark. 135; Hershey v. Berman, 34 Ark. 313; Third Century Digest, sec. 3911, col. 680. (2) That the lookout statute of Arkansas, as construed by the Supreme Court of Arkansas in numerous decisions, required the trainmen to keep a constant lookout for persons and property near the track as well as on it. C. & M. Digest, sec. 8568; St. L. S.W. Ry. Co. v. Bowen, 73 Ark. 594, 84 S.W. 789; Railway Co v. Lewis, 60 Ark. 416; Railroad Co. v. Denty, 63 Ark. 185; Railroad Co. v. Russell, 64 Ark. 239; Bush v. Brewer, 136 Ark. 256. (3) That instruction No. 1, dealing with the lookout statute, is in legal effect and meaning precisely like numerous instructions approved by the Supreme Court of Arkansas, and at least one instruction approved by the Supreme Court of Missouri. Hiatt v. Frisco Road, 271 S.W. 806; Huff v. Mo. Pac. R. R. Co., 25 Ark. 94; Mo. Pac. R. R. Co. v. Mitchell, 25 Ark. 129. (4) That the learned trial judge committed no error in declining to give defendant's request No. 8A, for the reason that it was argumentative. Olsen v. Bank, 158 Ark. 643, 239 S.W. 16; Y. & M. V. R. R. Co. v. Hill, 141 Ark. 378, 216 S.W. 1058. (5) That while said request 8A (if not argumentative) would have been good as an instruction on discovered peril under the common law, it was bad in this case because it ignored the lookout statute of Arkansas, which required the defendant to keep a constant lookout for persons and property on or near the track. Davis v. Scott, 151 Ark. 34, 235 S.W. 410; Mo. Pac. R. R. Co. v. Bode, 168 Ark. 160-161-162; Mo. Pac. R. R. Co. v. Bain, 25 Ark. 3; Hiatt v. St. L. S. F. Ry. Co., 271 S.W. 806. (6) That the method used by counsel for plaintiff to impeach the fireman was the method approved by the Supreme Court of Missouri in the case cited by learned counsel. After we asked the witness if he did not make certain statements in his former testimony, and he answered that he did, learned counsel had the right to ask the witness if he did not make other statements concerning the same matter. Failing to avail himself of that right he is in no position to complain if he suffered by not doing it. That is the practice approved by the Supreme Court of Missouri in the very case cited by learned counsel. Slaughter v. Horse & Mule Co., 259 S.W. 135. (7) That some of the witnesses testified that the whistle was not sounded and the bell did not ring, while still others testified that they did not hear it. This was sufficient, under the law of Arkansas, to submit the question of giving signals, to the jury. Frisco Railroad v. Horn, 168 Ark. 194.
This is an action for damages for the death of plaintiff's husband killed at a crossing at Smithdale, Cross county, Arkansas, on March 22, 1923. The cause was filed in Butler county in this State, October 6, 1924, and was tried before the court and a jury, resulting in a verdict for $ 7500 in favor of plaintiff. Motion for a new trial was overruled and defendant appealed.
The cause accrued in the State of Arkansas and was tried and disposed of below under the applicable Arkansas law which was pleaded and in evidence.
After some preliminary allegations plaintiff pleaded the following sections of the Arkansas statutory law:
Section 6289, Kirby's 1904 Digest. "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, should have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony."
[Section 6290, Kirby's 1904 Digest.]
[Section 8562, Crawford & Moses' Digest.] "All railroads which are now or may be hereafter built and operated in whole or in part in this State shall be responsible for all damages to persons and property done or caused by the running of trains in this State."
[Section 8575, Crawford & Moses' Digest.] "In all suits against railroads for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of the recovery shall be diminished in proportion to such contributory negligence."
[Section 8559, Crawford & Moses' Digest.] "A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a...
To continue reading
Request your trial