Zaloudek v. Missouri Pacific Railroad Co.
| Decision Date | 21 December 1936 |
| Docket Number | 4-4472 |
| Parties | ZALOUDEK v. MISSOURI PACIFIC RAILROAD COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Third Division; J. S. Utley Judge; reversed.
Judgment reversed and cause remanded for a new trial.
T. N Robertson and W. V. Lowery, for appellant.
R. E Wiley and Henry Donham, for appellees.
This suit was brought in the third division of the circuit court of Pulaski county by appellant against appellee to recover damages for negligently running one of its fast passenger trains over and killing Florence Clara Zaloudek, the daughter of O. J. Zaloudek, at the intersection of Eighteenth street and the railroad in the city of North Little Rock on the morning of April 24, 1935.
The allegation of negligence was to the effect that appellee ran its fast passenger train at the rate of forty to fifty miles an hour over and across Eighteenth street in the city of North Little Rock, where many children were accustomed to cross the railroad tracks enroute to school on the east side of the tracks at a time when many cars were parked on the west or side track so as to prevent the employees of appellee on the approaching train from observing children or other persons coming from the west on Eighteenth street, and which prevented persons coming from the west from seeing the approaching train.
Appellee filed an answer denying the material allegation of negligence against it and pleading contributory negligence on the part of the child.
The cause was submitted to a jury upon the pleadings, testimony adduced by appellant and appellee, and instructions of the court, resulting in a verdict against appellant and a consequent dismissal of his complaint, from which is this appeal.
Appellant contends for a reversal of the judgment upon the ground that in modifying his requested instructions I and 2 and giving them as modified, and in giving appellee's requested instruction No. 3, the trial court withdrew from the consideration of the jury that appellee had parked a large number of cars on the side track near the north of the Eighteenth street crossing so as to prevent appellee's employees on the incoming fast train from seeing pedestrians approaching the crossing from the west and to prevent pedestrians coming onto the crossing from the west from seeing the approaching train; and also withdrew from the jury the issue of whether appellee failed to give proper warning to deceased and others of the approach of the train to the point where the deceased was killed.
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...or of the train crew's view of those approaching the crossing. See Davis v. Scott, 151 Ark. 34, 235 S.W. 407; Zaloudek v. Missouri Pac. R. Co., 193 Ark. 344, 99 S.W.2d 567. This is one of those rare cases. The collision occurred in Thornton, population about 750. There are two streets cross......
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Harper v. Missouri Pac. R. Co., 5-1595
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