St. Louis, Iron Mountain & Southern Railway Co. v. Roddy , 110 Ark. 161 ( 1913 )

Smith, J.,

(after stating the facts). The court gave the jury a number of instructions on the question of contributory negligence, but, we think, under the facts here stated, the jury should have been told, as a matter of law, that deceased was guilty of contributory negligence. Circumstances might be such that a traveler at a crossing would be under no absolute duty to look and listen, and a number of cases discuss the exceptions to the rule requiring one to look and listen, and where the traveler comes within any exception excusing him from the performance of this absolute duty, the jury may consider the failure of the railway company’s employees to give signals and warning of the train’s approach to the crossing as bearing upon the contributory negligence of the traveler in failing to look and listen. But if there is nothing in the traveler’s approach to the crossing which would excuse him from the absolute duty of looking and listening, then the failure to give signals can not be considered upon the question of contributory negligence. Chitwood v. St. Louis, I. M. & S. Ry. Co., 104 Ark. 38; Ark. & La. Ry. Co. v. Graves, 96 Ark. 643; K. C. So. Ry. Co. v. Drew, 103 Ark. 374; St. Louis, I. M. & S. Ry. Co. v. Prince, 101 Ark. 316.

The thirteenth instruction, given at the request of the appellee, was as follows: “You are instructed that, while it is the duty of a person about to cross a railway track to look and listen for trains from each direction, where it may be reasonably done under the circumstances, yet, if it appears to' him before crossing, as a reasonably prudent person, under the surrounding circumstances, that greater danger is to be apprehended from one end of the track than the other, he may give more attention to that end of the track from which he, as a reasonably prudent person, under all circumstances, apprehends the greater danger.”

Even though it be conceded that this was a proper instruction under the facts of this case, and that deceased had the right to pay the greater attention to the freight engine near him, whose popping off of steam might indicate that it was about to be put in motion, still that right would not excuse the total failure to look in the opposite direction before starting across the track. St. Louis, I. M. & S. Ry. Co. v. Chamberlain, 105 Ark. 180.

The court gave the following, among other, instructions :

No. 2. “You are instructed that it was the duty of the defendant to ring the bell or sound a whistle at a distance of at least eighty rods from the place where the public crossing crossed the railroad, and to keep said bell ringing or whistle sounding until the crossing is passed; and you are further instructed that, in the absence of some warning or evidence to the contrary, the deceased had a right to assume that the defendant would cause the bell to ring or the whistle to sound, giving warning of the approach of its train, and if you find from the evidence in this case that the train which struck and killed the deceased, while he himself was in the exercise of ordinary care, your verdict must be for plaintiff.”

No. 15. “You are further instructed that, notwithstanding contributory negligence, if you find such to have existed iipon the part of deceased, in going upon the railroad track of the defendant at the place and time he did, yet, if you further find that the employees of defendant’s train discovered his peril, or could have discovered his peril by keeping the lookout elsewhere defined in these instructions, it became the duty to sound the whistle or ring the bell, or lessen the speed of the train, and make use of all reasonable means within their power consistent with safe operation of the train to avoid striking the deceased; and if they failed to exercise any of these precautions after having discovered his peril, or could have discovered such peril by keeping a proper lookout in time to have prevented the injury, and that his injury was caused by such failure, you will find for the plaintiff.”

No. 17. “Yon are instructed that it is unlawful for any railroad company owning or operating freight trains to suffer or permit the same to remain standing across any public highway, street, alley or farm crossing, or, when it becomes necessary to stop such trains across any public highway, street, alley or farm crossing for more than ten minutes, and fails to leave a space of sixty feet across such public highway, street, alley or farm crossing. You are instructed that the above requirement fixes the standard of care by which the conduct of the railroad company must be tested, and a failure in this respect is negligence which renders the company liable for any injury which results as a direct consequence therefrom.”

We think the court erred in the giving of each of these instructions. The second is erroneous because the jury might have understood from it that, in determining whether deceased was guilty of contributory negligence in failing to look and listen, they had the right to consider the failure to ring the bell or blow the whistle, while, as we have stated, under the evidence in this case, the duty to look was an absolute one, and was not excused by the appellant’s failure to give signals:

The fifteenth instruction was not the law prior to the passage of Act No. 284, page 275, of the Acts of 1911. This act is the amended lookout statute, and was approved on May 26, 1911, which was three days before Mr. Roddy was killed. But the regular session of 1911 ended on June 2, 1911, and, as the statute contained no emergency clause, it did not go into effect until ninety days after June 2,1911. Ark. Tax Commission v. Moore, 103 Ark. 48.

Prior to this act, contributory negligence was a defense against the negligent failure to keep a lookout, where the peril had not been discovered in time to have avoided the injury by the exercise of due care thereafter. Johnson v. Stewart, 62 Ark. 164; St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 238.

The seventeenth instruction should not have been given because the jury may have taken it as a direction to find appellant guilty of negligence, if they found the crossing had been obstructed for more than ten minutes. The obstruction of the crossing was not the proximate cause of the injury.

Notwithstanding the fact that this cause must be reversed, and that the jury should have been told, under this evidence, that deceased was guilty of contributory negligence, it does not follow that the cause must be dismissed. The engineer on the passenger train admits that he saw the deceased for a distance of 300 to 320 feet, and that he had shut off steam, and was rolling along at a rate not to exceed twenty miles an hour, and that he was getting ready to stop at the depot which is 738 feet north of the crossing where Mr. Roddy was killed. The engineer saw Mr. Roddy distinctly, and observed and described his apparel, and he further testified, “He was going along attending to his business. I saw him. I made no effort to alarm him, because the man had measured the distance, and I presumed, would cross all right. I could have gotten across all right, the distance I was from him about the time I first saw him.” One witness testified that as Mr. Roddy came around the cars on the house track and around the freight engine on the passing track to the main line track, he described a part of a letter “S,” and all witnesses who saw him just before he was struck, say that his head was turned to the right as if he was devoting his attention to the freight engine, and the engineer on the freight train testified that he hallooed at Mr. Roddy, and as he did so, Mr. Roddy jumped, but was struck by the passenger engine.

We think it a question of fact, for submission to a jury, whether the passenger engineer was guilty of negligence after discovering Roddy’s peril in taking chances on! his getting to a place of safety, and whether the engineer should not have attempted, either to slacken his train, or to give warning of its approach by proper signals. Garrison v. St. Louis, I. M. & S. Ry. Co., 92 Ark. 445; Majors v. St. Louis, I. M. & S. Ry. Co., 95 Ark. 94.

For the errors indicated, the judgment is reversed and the cause remanded for a new trial.