Martin v. Little Rock & Fort Smith Railway Co.

Riddick, J., (after stating the facts.) We agree with counsel for appellee that this case comes within the rule laid down in Railway Co. v. Cullen, 54 Ark. 431, and again in Railway Co. v. Tippett, 56 Ark. 459. The question for the trial court was whether, assuming the testimony and all the inferences legitimately deducible from it as true,- the jury would be justified in finding a verdict for plaintiff. Patterson’s Railway Accident Law, sec. 175. He answered this question in the negative, and directed a verdict for defendant, and we concur in his ruling. “A traveler approaching a railroad track, crossing a highway,” says Mr. Wood, ‘‘is bound to exercise ordinary prudence — such prudence as is fairly commensurate with the nature of the risk. If he can see for a long distance up and down the track, he is bound to look to see whether a train is approaching; and if the track can only be seen for a short distance, he is bound to look and listen for an approaching train; and when, by the exercise of these senses, he might have avoided the injury, no recovery can be had.” 2 Wood, Railways, (Minor’s Ed.) 1518; Railway Co. v. Cullen, 54 Ark. 431; Railway Co. v. Tippett, 56 id. 459. We do not hold that in every case where a traveler fails to look and listen, and is injured by a train while crossing a railway track, the case should be taken from the jury. It is only where it appears from the evidence that he might have seen had he looked, or might have heard had he listened, that his failure to look and listen will necessarily constitute negligence. Smedis v. Railway Co., 88 N. Y. 13; 2 Wood, Railroads, 1527. Then, too, there are cases where the employees in charge of the train fail to use due care after discovering the danger of the traveler. But there is nothing in the evidence here to show that the employees of the company in charge of the train had' any reason to believe that appellant would expose himself to injury by stepping before the train. The appellant was struck just as he started to go upon the track, which shows that the employees of the company had no time to anticipate his action in this regard. The appellant testified that the noise made by the escaping steam from an engine on the side track prevented him from hearing the approaching train, but it furnished no excuse for his failure to look to see whether a train was approaching. He knew that on account of the noise of the steam he could not hear, and there was all the more reason why he should have looked for a train before attempting to step on the track. The train was approaching in full view, and, had he looked to the west along the track, he would have seen it in time to have avoided the injury. His failure to look under such circumstances was negligence directly contributing to his injury, and he cannot recover. As the evidence was not legally sufficient to sustain a verdict for the plaintiff, the court properly directed a verdict for defendant. Catlett v. Railway Co., 57 Ark. 461. The judgment is affirmed.