Burns v. St. Louis Southwestern Railway Co.

Wood, J., (after stating the facts.) It is unnecessary to discuss the evidence at length. The appellant was guilty of con-tributary negligence, according to the undisputed facts, and it was the plain duty of the court to declare as matter of law that appellant had no cause of action. On the question of contributory negligence, this was the testimony of appellant himself, as abstracted by his counsel: “He started from the depot to go to a pair of scales to weigh a load of hay, and he was on what is called the 'passing track/ and, remembering that a freight train was at the tank just northeast of the depot, about 100 yards, and hearing it start from the tank, when it got just southwest of the depot a few feet, a point where all the switches branch out, he looked back, and thought he saw the engine heading for the 'passing track’, which it was customary for trains of that kind to do. He then stepped across the usual traveled way between the two tracks, and, to be sure he was out of the way, he stepped over in the center of the main track, and immediately the engine struck him, when he was just about at the southern or western edge of College Street, on a line with the western line of College Street. After he stepped on the main track he walked at least thirty yards or ninety feet, before he was struck.” This leaves nothing for the jury. According to familiar rules often announced by this court, appellant did not make that use of his senses for his own protection which the law exacts before he can recover for the negligence of the company that concurred in his injury. St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; Little Rock & Fort Smith Ry. Co. v. Blewitt, 65 Ark. 235; St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134. Appellant’s great familiarity with the tracks and trains where he was injured, and the ever imminence of peril, where there was so much passing and switching, should have kept his senses alert, and have caused him to walk between the railroad tracks where according to the witnesses, it was “nice and smooth,” and free from all danger. The law wisely and justly holds the company liable for its own acts of negligence which result in injury to another. But there would be no reason or justice in holding it responsible for the mistakes of another which it did not cause, and could not prevent, and but for which there would have been no injury, notwithstanding its own negligence. Railway Company v. Cullen, 54 Ark. 431; Railway Company v. Ross, 56 Ark. 271; Railway Company v. Tippett, 56 Ark. 4571 Catlett v. Railway Company, 57 Ark. 461. See also Missouri Pac. Ry. Co. v. Moseley, 57 Fed. 921, and other cases cited in appellee’s brief. There is no proof whatever that would warrant the conclusion that appellee wantonly, maliciously or intentionally injured appellant, or was guilty of such negligence, after discovering appellant’s peril, as to make an inference of this kind justifiable. Mo. Pac. Ry. v. Moseley, 57 Fed. 921. On the contrary, appellant alleges in his complaint that “they were .running the train at such an unusual speed that it could not be stopped after seeing him,” and the evidence on the part of the engineer and fireman was affirmative and positive that they “did not see him on the main line, and never knew he was there until' after the accident, thus distinguishing the case in this respect from the recent cases of St. Louis, I. M. & S. Ry. Co. v. Johnson, 74 Ark. 372, and St. Louis, I. M. & S. Ry. Co. v. Hill, 74 Ark. 478. Judgment affirmed.