Billingsley v. St. Louis-San Francisco Railway Co.

Hart,. J., (after stating the facts). It is the contention of counsel for the plaintiff that the court erred in directing a verdict for the defendant. The court was of the opinion that, when the testimony was considered in the light most favorable to the plaintiff, it showed as a matter of law that Billingsley was guilty of contributory negligence. While the question is a very close one, under the facts and circumstances adduced in evidence, we think the court erred in not submitting that question to the jury. The evidence for the plaintiff shows that he was a drayman in the town of Hardy and that the team he drove was used to passing about trains. On the day of the accident, Billingsley was engaged in his usual occupation of hauling freight from the depot. On his return to the depot he stopped on Main Street to speak to his brother-in-law and another drayman. They testified that just .after he left them they heard the passenger train, which was coming in from the west, whistle for the station, a mile away. The evidence shows that the street over which Billingsley was then driving was rocky, and the train in question was late. The jury might have inferred that Billingsley did not hear the train whistle for the station. Billingsley drove on down Main Street something less than 250 feet and then turned into a street extending south over the railroad tracks. He was standing up in the wagon and drove down this street south towards the railroad crossing at a fast trot. He was going down grade all the way until he reached the railroad crossing and a train coming in from the west would also be running down grade. For 150 feet before Billingsley reached the railroad crossing, cinders had been laid over the traveled road and had been packed into the road so as to form a smooth and hard surface so that vehicles rolling over it made very little noise. The view of the traveler of trains approaching from either direction was obstructed until he came around the cars on the commercial track. There was also a large warehouse which obstructed the view of the traveler on the west side of the crossing. It is true the omission of the engineer to give the statutory signals for the crossing did not relieve Billingsley of the duty of looking and listening for the approaching trains, yet they were warnings which he had the right to rely upon in determining whether a train was approaching. It is also true that Billingsley could not relax his efforts to see and hear approaching trains because his view was obstructed by the warehouse and by the box cars, still under such circumstances he must necessarily rely to a greater degree upon his sense of hearing to discover the approach of a train and in doing this -he doubtless listened not only for the noise of an approaching train, but for the statutory signals required to be given, warning travelers of the approach of the train. Under these circumstances the jury might have legitimately inferred that Billingsley was not guilty of contributory negligence in approaching the crossing at a trot. ■ After he had passed the box cars and trains from either direction came within his line of vision, the evidence shows that he first looked towards the east and then towards the west as if looking for an approaching train. • There was a freight train on the passing track east of the crossing and the passenger train was coming in from the west. The evidence also shows that this train was coming faster than usual, was running down grade, and was making very little noise. It is inferable from the evidence that Billingsley stopped his mules before they had gotten upon the main track, .and that they became frightened at the rapidly approaching train of which they had had no previous warning, and on this account became uncontrollable and jumped across the main track dragging the wagon after them. "When all the attendant circumstances are considered in the light of each other, it can not be said as a matter -of law that Billingsley was guilty of contributory negligence. Of course, it is well settled by the decisions of this court that a traveler along the highway attempting to cross a railroad track must look and listen for the approach of trains, and stop if necessary to do so, otherwise he is guilty of contributory negligence and can not recover damages on account of injuries resulting therefrom. It can not' be said, however, in the present case that the undisputed evidence shows that Billingsley did not look and listen, and we think it was a question of fact for the jury to determine under all the facts and circumstances adduced in evidence whether the precautions which Billingsley exercised in that respect were sufficient to acquit him of a charge of negligence. We think the facts and circumstances adduced in evidence in this case bring it within the decision in St. L., I. M. & S. R. Co. v. Stacks, 97 Ark. 405, and that the circuit court erred in directing a verdict for the defendant. For that reason the judgment must be reversed and the cause remanded for a new trial. Wood and Smith, JJ., dissent.