Bush v. Brewer

Humphreys, J. Appellees instituted separate suits .against appellants in the Jefferson Circuit Court to recover damages occasioned to the person and automobile of T. L. Guest, and to the person of W. P. Brewer, in a ■collision between Guest’s automobile and a passenger, train of appellants at the crossing near Pine Bluff of appellants’ track with the Dollarway Pike leading from Pine Bluff to Little Rock. It was alleged in the complaint that the injury resulted from the negligent operation of appellants’ train by their employees (1) in running at an unusual, excessive speed up to. a. much traveled public .crossing near the city of Pine Bluff, without sounding the whistle or ringing the bell; (2) without keeping a constant lookout for persons and property on the track, as required by law; that vehicles were constantly passing over the crossing and, prior to the injury, appellants had installed a stationary electric signal at the crossing to ring and warn the public at the approach of trains, which signal failed to ring because out of repair through the neglect of appellants. Appellees prayed for $3,000 damages, each, for personal injuries and appellee Guest for $400 additional on account of damage to his automobile. Appellants denied the material allegations of negligence in each complaint and charged that the injury, if any, resulted to each (1) because each failed to look and listen for the approach of trains, (2) because each failed to exercise ordinary care to prevent the injury, and (3) because they each approached the train in a careless and reckless manner and caused the collision. The causes were consolidated and submitted upon the pleadings, instructions of the court and evidence adduced. A verdict was returned against appellants in favor of T. L. Guest for $350 and in favor of W. F. Brewer for $130. Proper steps were taken and an appeal has been prosecuted to this court. The evidence was conflicting as to whether the train was run at an excessive speed, whether the whistle sounded or the bell rang, or whether the gong at the crossing rang when the train approached the crossing. So, on account of the conflict in the evidence, the question of negligence on the part of appellants in these particulars became a question of fact to be determined by the jury under proper instructions. Appellants insist that it must be said as a matter of law, under the undisputed evidence in the case, that the injury resulted directly from the contributory negligence of appellees in (1) that they did not look and listen for the approaching train before going upon the track and continue to look and listen until they had passed the point of danger. The law is well established in this State that as a general rule “a traveler approaching a railroad crossing must take notice of the fact that it is a place of danger and must not only look and listen for the approach of trains before he goes upon the track, but must continue to look and listen until he is past the point of danger,” and that “it is clear that the duty to stop, to look and to listen, if need be, must be performed at such a time and place, with reference to the particular situation in each case involved, as will enable a traveler to accomplish the purpose the law has in view in imposing such duty upon him.” St. Louis, I. M. & S. R. Co. v. Kimbrell, 117 Ark. 457. See also Choctaw, O. & G. R. Co. v. Baskins, 78 Ark. 355; Arkansas & L. Ry. Co. v. Graves, 96 Ark. 638, and cases cited. Under the rule thus announced, unless the record in this ease brought it within a known exception to the rule, or if the uncontradicted and indisputable evidence disclosed that appellees failed to look and listen' for approaching trains both ways and failed to keep a vigilant lookout until the danger passed, then it would have been the duty of the court to peremptorily instruct a verdict for appellants; but if the evidence in the whole case brought it within a known exception to the general rule, or if the evidence was conflicting as to whether appellees looked and listened for the approach of trains both ways and maintained their vigilance until the danger passed, then in either event the record presented a question of fact to be decided by the jury, and it would have been error to direct a verdict for appellants. Chicago, R. I. & P. Ry. v. Hamilton, 92 Ark. 400; Arkansas Central Ry. Co. v. Williams, 99 Ark. 167. Appellee, T. L. Guest, testified, in substance, upon tlie vital points as follows: That on the morning of December 31, 1916, he and his family, in company with his invited guests, W. F. Brewer and family, were driving out of Pine Bluff on the most traveled public road, which is a paved road known as the Dollarway Pike that crossed appellants’ railroad a short distance out of Pine Bluff; that he owned the automobile, and was traveling west at the rate of about fifteen miles an hour.until he reached a point 190 feet east of the crossing, at which point he cut off Ms gasoline and coasted about 100 feet; that at that point he could see about 200 to 250 yards down the track and looked and listened for a train but did not see or hear the train or gong at the station, and, supposing that the track was clear, he increased his speed; that there was a signboard for the next twenty feet to his right and also a strip of woodland between him and the direction from which the train came; that the signboard obstructed his view in that direction; but that if the bell had been ringing or the whistle blown he could have heard it, as he was listening for it; that the stationary signal could be heard for a long distance; that he would have heard it had it been ringing, but that on that occasion it was not ringing; that he could not tell whether he first heard or saw the train, but upon discovering it, he immediately cut off the gasoline, threw the clutch in neutral and threw on the brakes, but that the car skidded on the wet pavement right up to the train; that, in order to avoid, the collision, he turned to the right and fell off a place about twelve to fourteen inches deep, and about that time something struck the wheel and jerked him under the engine or tender, as he thought. Appellee Brewer’s testimony did not differ materially from that of Mr. Guest. He testified to the further fact that the train was running at an unusual rate of speed, but said on cross-examination that after he went behind the signboard he was talking to Mr. Guest and paid no more attention to the train. In explanation, he stated that he had his ears open and would have heard the signals if any had been given. Appellants’ construction of this evidence is that appellees quit looking and listening 190 feet from the track and that therefore, under their own admissions, they were guilty of contributory negligence, which precluded them from recovering under the authority of Choctaw, O. & G. Rd. v. Baskins; Arkansas & L. R. Ry. Co. v. Graves; St. Louis, I. M. & S. Ry. Co. v. Kimbrell, supra. We are unable to agree with the construction of the évidence placed upon appellee’s testimony by appellants. We think the testimony of Mr. Guest brought the app ellees clearly within the rule that travelers must look and listen for approaching trains, and that their vigilance should not be slackened or abated until the danger was past. Appellants claimed that the evidence of appellees is in conflict with the physical facts; that, had they looked and listened when they were 190 feet from the railroad crossing, as testified by them, considering the speed they thereafter traveled and the speed the train was coming, it must have been within' the range of their vision at that time, and that in the law they must be held to have seen the train if they looked, and to have heard the train if they listened. This contention is based upon the rate of speed the train is supposed to have been traveling and the rate of speed the appellees were going. We cannot indulge these mathematical niceties because there is no way to determine from this record the exact rate of speed of the train or the exact rate of speed appellees traveled while coasting. Without knowing exactly how fast the train was traveling, it is impossible to tell how long it took to cover any certain distance. Likewise, it is impossible to tell how long it took appellees in an automobile to cover a certain distance unless the exact speed at which they traveled could be defimitely ascertained. Indisputable facts are more than mere approximations. Unless it could be said with absolute certainty that the evidence of appellees is contrary to the physical facts, and therefore untrue, it cannot be said as a matter of law that appellees were guilty of not seeing when they looked or not hearing when they listened. It is urged, however, that appellees contributed to their own injury by approaching the track so rapidly that they could not stop after seeing and hearing the train before the injury occurred. While appellee did not succeed in stopping his car before striking the train, he almost did so after he discovered it, and he would perhaps have done so within the distance if the road had not been wet and unduly slick.. Under the evidence of Mr. Guest, it seems to have been a mis calculation on his part as to the time and distance in which he could stop his car, rather than the act of an imprudent and reckless man in approching the train so rapidly that it was impossible for him to stop the car in any event. The most careful and cautious man will frequently make mistakes in measuring and estimating distances within which he can stop his automobile. "We think under the facts and circumstances of this case the question of negligence on the part of the appellees in this regard is a question solely for the jury. Aside, however from the questions discussed above, we think there is one potent fact in this case which brings it clearly within an exception to the general rule that a traveler must not abate his vigilance in looking and hearing as he approaches a railroad crossing and until the danger is passed. This was a crossing close to a city, on a pike where there was continuous passing o‘f vehicles. The road approached the track bn a curve. A gong, or stationary signal, was placed at this particular point to warn the public. It was an electrical device so constructed that it was almost impossible to get out of repair. On the approach of trains it could be heard for a long distance from the crossing. It began to ring when the train was approaching from either direction a distance of-feet, and when not ringing was a warning to the public that there was no danger from approaching trains. Its silence was, in a measure, an invitation to the public to cross. It did not relieve the duty placed upon the traveler to look and listen and to see when he looked and to hear when he listened, but it did authorize the traveler to rely in a measure upon the sound of the gong, and must be regarded as bringing the case within an exception to the general rule aforesaid. It was held by this court in the case of Chicago, Rock Island & Pac. R. Co. v. Hamilton, 92 Ark. 400, that “an open gateway at a railroad crossing is an invitation to the traveler to cross, though the gateman is not in sight.” The court said in that case that the effect of such an invitation was to bring the case within an exception to the general rule that “it is negligence for one approaching a railroad crossing to fail to look and listen for the. approach of trains.” It was also said by this court: “This was an invitation to a traveler, or an assurance to him that the way was clear and that he might proceed in safety. Whether or not it constituted negligence for him to cross without taking the further precaution of looking or listening was a question for the jury to determine under all the circumstances of the case. For, when the plaintiff attempted to cross, upon the invitation of the company’s agent and under the implied assurance that it was safe for him to do so, it cannot be said as á matter of law that he was guilty of negligence in failing to look or listen for danger. This exception to the general rule has been repeatedly recognized by text writers, and by the adjudged cases. 3 Elliott on Railroads, sec. 1157; Directors of N. E. Ry. Co. v. Wanless, L. R. 7 E. & I. App. Cas. 12; Evans v. Lake Shore, Etc. Ry. Co., 88 Mich. 442; Glushing v. Sharp, 96 N. Y. 676; Ry. Co. v. Schneider, 45 O. St. 678; Wilson v. New York, Etc. Ry. Co., 18 R. I. 491; Merrigan v. Boston & A. Rd. Co., 154 Mass. 189.” • We are therefore of the opinion that the failure to sound the stationary gong on this particular occasion brings this case within the exception to the general rule and if it be true that the gong did not ring, which was a disputed fact, it raised a question for the jury to determine whether appellees were negligent in failing to look and listen for approaching trains while behind the signboard, if it be true that they did so fail to look and listen while in that position, which itself was a disputed fact- and one for the jury. Under this view of the case, it was not error to give instruction 9 requested by appellants, which is as follows: “It is not negligence in every case for the-traveler to fail to look and listen for the approach of trains. Ordinarily, this is the rule, but that is not required in every case. It is for the jury to determine from the circumstances and facts in this case whether or not the conditions existing at the time of the accident were such that an ordinarily prudent person might have expected a train to pass along at that particular time. It is the duty of the jury to consider the incident in the light of the circumstances as they appeared to the plaintiffs at the time and then to say, by your verdict, whether or not the plaintiffs were guilty of imprudent or negligent conduct which caused or contributed to their injuries.” It is said, however, that instruction 9 is in conflict with instruction 10 requested by appellants and given by the court, which is as follows: “You are instructed that it is the duty of a traveler on a highway approaching a railroad crossing to exercise ordinary care and prudence,. that is such care and prudence as an ordinarily prudent man would exercise under the circumstances, and that under the laws such a traveler is bound to both look and listen for the approach of trains before going on the crossing, and to continue to look and listen until he is over the crossing, mid if he fails to do so he is guilty of contributory negligence and cannot recover. And this is true, although the railroad company itself is guilty of negligence in the operation of its train or in any other manner. ’ ’ Instruction No. 10, requested by appellants and given by the court, was an announcement of the general rule and in no way conflicted with instruction No. 9, requested by appellees and given by the court, which announced the exception to the general rule. There can be no conflict between a general rule and an exception thereto. Appellants insist that the court erred in giving instruction No. 4, which is as follows: “Under the laws of this State, it is the duty of all persons running trains upon any railroad in the State to keep a constant lookout for persons and property upon the tracks of such railroad. If any person or property is injured by the neglect of any employee of any railroad to keep such a lookout, the company owning or operating such railroad shall be liable and responsible to the person injured for all damages resulting from the neglect to keep such lookout, notwithstanding any contributory negligence, if any be shown, on the part of the person injured, where, if snch lookout had been kept, the employee or employees in charge of such train could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care, and the burden of proof is upon the railroad to establish the fact that this duty to keep such lookout has been performed.” It is said by the appellants that this instruction required its employees to keep a lookout for travelers on the highway, irrespective of whether they were upon the track; that the lookout statute only requires the employees to keep a lookout for persons and property upon the track. This statute has been construed to mean that the duty rests upon the employees of the railroad to use ordinary care to discover travelers or property on the highway approaching the train whether they are upon the track or not. Railway Company v. Lewis, 60 Ark. 409; St. L. I. M. & S. R. Co. v. Denty, 63 Ark. 177; St. L. Sw. Ry. Co. v. Russell, 64 Ark. 236. It is said that there was no evidence in the case upon which to base the instruction. Negligence for failure to keep a lookout was pleaded in the complaint, and the fireman gave testimony upon the issue tendered. He testified that he kept a constant lookout and never observed-appellee's car until the engine was practically on the crossing, and that the automobile was some 80 or 100 feet from the track at that time. There was evidence tending to show that the automobile was only a few feet from the track when the engine reached the crossing, so the jury may have concluded that the fireman was not keeping a lookout if he did not discover appellees until the engine was practically upon the crossing. The fireman attempted to excuse his failure to discover appellees sooner because his view was obstructed by the limbs of trees, as he stated he did not know whether he could have seen appellees sooner, because he made no effort to see them through the limbs of the trees. It may be the jury concluded from this statement that the fireman failed to keep a lookout, but' it is said that had the fireman kept a lookout he could not have discovered appellees in time to prevent the injury. The jury might have found that had the fireman been looking as the train approached this much traveled thoroughfare, he might have seen the automobile a few seconds sooner over the top of the signboard or as the car first appeared from behind the signboard and have notified appellees in time to stop by a blast of the whistle or a ring of the bell. We think the evidence warranted an instruction on the lookout statute, ,and it was not erroneous as being abstract. Alleged errors in the admission of testimony are urged as grounds for reversal. Campbell Fox was permitted to testify that he had ridden as much as 65 to 75 miles in an automobile driven by Mr. Guest and that he was not a fast, but a careful, drivér. One of the contentions of appellants was that Guest caused his own injury and that of Brewer by approaching the track in a careless, reckless manner. In response to this charge, it was proper to show his habit as a cautious, careful driver. Davis v. Concord & M. R. R. (N. H.), 44 Atl. 388. Appellant Brewer was permitted to testify that the train seemed to be running faster than it usually did. This was a much traveled road. It was the principal thoroughfare leading into Pine Bluff, and the crossing was only a short distance out of the city. It is true that the running of a train at an unusual rate of speed over the crossing would not of itself constitute negligence on the part of appellants, but it would be an element to be considered by the jury in connection with the other circumstances in the case to determine whether appellants were negligent. St. Louis, I. M. & S. R. Co. v. Kimbrell, 117 Ark. 457. Dr. O. W. Clark, who' attended on W. F. Brewer when he was injured, was permitted to testify that Brewer “complained of an injury to his back. There were no objective symptoms of an injury, but from his complaint I judged at the time that it was a sprain from the nature of the symptoms he gave. ’ ’ The evidence was admissible to show the existence of an injury, but it was a question for the jury to say whether the complaint as to the injury was real or feigned. Railway Company v. Murray, 55 Ark. 248. Mrs. Brewer and Mrs. Guest were permitted to testify. The jury were told to consider Mrs. Guest’s evidence only in behalf of Mr. Brewer, and Mrs. Brewer’s evidence only in behalf of Mr. Guest. It will be remembered that these cases were consolidated. The statute providing for the consolidation of cases was intended to save time and expense and not for the purpose of depriving litigants of their testimony. Notwithstanding the consolidation of the cases, still Mrs. Brewer was a competent witness for Mr. Guest, and Mrs. Guest was a competent'witness for Mr. Brewer. Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334. We have recorded our conclusions and reasons therefor on the main assignments of error in this ease. There are other assignments of error consisting in refusing to give instructions in the form asked and in modifying and giving them; and in refusing a number of instructions outright. We have considered these assignments of error, but find them not well taken'. We think the jury was correctly instructed upon every phase of the case. No error appearing, each judgment is affirmed.