Adler v. St. Louis Southwestern Railway Co.

Hart, J., (after stating the facts). Under our statute it is the duty of the railroad to maintain a constant lookout, and if it appears that those in control of a train, in discharge of their statutory duty to keep a lookout, discovered or should have discovered a person upon or near the track in time to avert an injury to him, and failed to do so, the railroad becomes liable to him in damages, notwithstanding the fact of the contributory negligence of the person walking upon or near the track placed him in peril. Gregory v. Mo. Pac. Rd. Co., 168 Ark. 469; Davis v. Scott, 151 Ark. 34; and St. Louis S. W. Ry. Co. v. Douglas, 119 Ark. 33. The instructions' copied in our statement of facts show that the court submitted to the jury the doctrine of discovered peril and the statutory duty of the defendant to keep a lookout. It is contended by counsel for the plaintiff that the circuit court erred in not submitting to the jury the question of the negligence of the defendant in failing to give the statutory warning of the approach of the train by ringing the bell or sounding the whistle. While several witnesses for the defendant testified that the hell was ringing after the train left the water-tank and while it was approaching the station, still, according to the testimony of the plaintiff, the jury might have found that the bell was not kept ringing after the train left the water-tank. The plaintiff admitted that he saw the train stop at the water-tank to take water, and that this was 246 feet south of the station. In company with his intended wife and some friends, the plaintiff then started up the platform to get in a coach which was placed on the- track to be attached to the train going north to Little Rock. The plaintiff admits that he did not look back as he walked up the platform, but claims that the defendant was negligent in not ringing the bell so as to warn him of the approach of the train. In this respect the case at bar is different from the Douglas and Davis cases just cited. In each of those cases the plaintiff admitted that he saw the train approaching, and of course had all the warning which could have been given him by ringing the bell or sounding the whistle. In the present case, while the plaintiff did not look back and see the train approaching, still he had all the warning of its approach that was necessary. He had formerly lived at England, and was perfectly familiar with the situation there. He knew that the coach in which he had ridden from Stuttgart would be placed on the main track at England and would be taken, up by the northbound passenger train from Pine Bluff. He saw a train 246 feet south of the station, taking water. He started up the platform for the purpose of getting in the coach which was to be attached to a train from the south going north. He knew that his train was due,'and there is no other reasonable inference but that he' must have known that the train which stopped to take water was the train which he was waiting for. He knew that, within a few minutes, the. train would approach the station. Thus it will ;be seen that he had all the warning -which could have been given him by ringing the bell dr sounding the whistle. There was no evidence from which to predicate negligence on the part of the defendant in failing to.give the statutory signals as to the approach of the train as the proximate cause of the injury to the plaintiff. In this connection it may be stated that the court instructed the jury on, the doctrine of comparative negligence under § 8575 of Crawford & Moses’ Digest in accordance with its construction in the cases above cited. We find no reversible error in the record-, and the judgment will therefore be affirmed. . '