'ARk. ] • • MO. PACY RAILROAR CO. RdBERTSON. 957 • MISSOtTRI PACIFIC RAIilt&AD CbMPASTY'V:110,13E11i8ON. Opinion deliyered November 30, 1926. . 1. ; RAILROADS—NEGLIGENCE IN . CRO SSING',ACCIDENTURY. QUESTION S.— Evidence in an . action for personal . injuries in a railroad.,crossing accident held td justify' 'SubMission Of 'the issues. of negligence • and of ContribUtdry and-Oomparative 'negligence tO.therjUry. •2. RAILROADS-. --FAILURD TO kEEO 'LOOKOUT JURY QuEstION:-4-Evidexice e 'held to justifY subraission-to ihe ijury.of the •cpiestiOn whether !the testimony , of the .fireman to the1effect that he ycpt , a lookout_was reasonable, self-consistent and unconiradicted. • 7,7', '7' 71' 71 .-t7 t••I 1;1) ,•1 3.. 1 RaIr . ..RoAps—PA4x4E TO WIIISTLE FOR CROSSING—INSTRUCTION:7— "A.n. instruCtion that If 'the defendant's empiOyeeS" failed tO WbiStk :for ' the 'croSsihk, 'lint' did WhistlerLfer Ihre ` Stafidii; ( arid- that iSiich . station was 'a:long . blaSt, .6d nearJr-to ;Station than would have been, the,croSsing whistle, failw., to. give the:crossing whiatle • was not the proximate cause of , the accident, hfld properly refused as argumentative and . errorieoits;' . since the failure id give the : ciosSing ignal'i's negligence; -and it is fbr-the jlity : tb Adk whether • : -such failure-was the, proximate cause of the injury. ;•.: I 4. RAILROADS—CONTRIBUTORY ' NEGrAGENCE-INSTRUCTioas.---It: I was : net error, in an ,action.for personal injuries teceiyed, at , attailroad , crossing,-to charge the•jdry: that, if it appeared to this plaintiff as a reaSOnable person ihat greater danger was . to he apprehended from one end of 'the ! ita& ihan the •Other, 4.1re • more 'attentien‘ to that e'rid whete'the rcemit fn r̀ther 'charged that ; pbt., be,. guilty . :-of coritribUtory , megligencel Unless • . he,:failed . to look , .both.ways and to _listen for approaching trains or to.use . ordinary.care to , , avoid injury, such as stopping, if necessary, that" he might better a.nd 'listen: .; RAILROADS—COMPARATIVE NEGLIGENCE---INsiiuctioNs ' Instrue-"tioris given by 'the couit, in a: Personal injury actiOn,:Wherittaken — together, held to . require 'that plaintiffneglikeficei,e less !than - :defendant'S- before the -jury would i be justified An returning ;al dict in plaintiff's , favor.: , ;.. ;, 1: 6, RAILROADS= . -INTURY 'AT , •CROSSING — I , NSTR • U CTIO . D ‘ T • 1AS - . PRESUMP- - TION.=Irl , an . a cii on for: personal .injUries received , at. : a .railroad .crossing,. an inst -rUctiOh' , plaintiff was "injUred by the • ' : twining Of' a 'railroad traiii‘ 'af a 4itiblie' • sumes that the: injury: wa-s :negligently done; ! but i the railroad;': to liabijity, may ! .t4 shofw, 'by, a: preponderance ! of the!tevidence t hat injary w ; as ; not the; r,esult . of , the negligence of , the , railroad,"—was not open to a general- ohjeaion when read in conne.e-ton With inatrii4iOns prOperly subiniiting:ihe iSsue'as cO'n-' •`• tribiltOry negligence. ; ' ! ' i.; • , ,s,,;
P,58 MO. PetC: . RAILItOAD CO. V. .ROBERTSRN.. [169 .Appeal .from _Greene Circuit gourt ; .W.,W.. Vgndy, Judge ; affirmed. . Thos: B. PryOr' and Gordon PrierSon,' foi appellant. , Huddlestoo Little, and 'R P Taytor, for a = p Pellee. WOop, J. .This, is an action bY the appellee .against the appellant to .recover damages for , personal injuries growing out of. the alleged negligence; of . theaservants of ',appellant in-the opératidn of( its train. Thel 'appellee alleged that, 'While s he'*as driving a truck over . the track of appellant on . a public crossing, - apPellee and his truck were strueli through the negligence of the servants of ap-,ipellant,! operating 4ts train,;,in failing to; give the statu-; tory ,signals, and:im failing to keep , a lookout, ,and:in running said train at an excessive i rate of speedt: •' ' The aPpellant, in ifs answer,' deriied'the,matel:ial al-, legations of the complaint ,and tset up the affirmative defense of contributory negligence ion the part of-the ap-, pellee. - The -verdict and judgment were in favor 'df the apPellee,. and 'the appellant duly . prOsecutes . thiS appeal. .dispose of the, af:4ellanq g contenticiikin the Orcler . :presented :in :briei , Of its;c6unsel.,,, 1. . Appellant ,coniends that the c,ourt erred in re-, fusing. its prayer, fOr -instruction Noi r k, aS TolloW6 : `:` You = are* instructed td return:a: -Verdict for ' the defendant." Learried'edunsel fer aPPellant argue" 'first 'that 'the Undisputed testimony .. .shows 'that the appellant's sery,ants, in ,operating its . train, were not .negligent; and, -.second, if counsel mistaken .in • this, that,,the undisputedAesti-. mony, shows that the -appellee was• guilty Of contribUtory negligence, and that his contributory negli'genee" was much greater than any negligence 'of appellant 's servantS, ' Jid'that'in ' either event the,apPellant iS not liable.' 'There was testimony on behalf of the,appellee tending i to prove that, , while the, , appellee was travelingion the highway ap-, proaching the crossing,- and ' about the tithe' appellee 'reached the pdint where he Would turn 'south . onthe'highwaY; arna ,ivh`ere 'he . could see , as 'far- :as. ,411.0.ifeet to the north:the direction from which the train was coming that
ARK.] MO. PAC. RAILROAD • GO. V. ROBERTSON. 959 injured, him, he looked both to the' north and ; the sonth; and .did not see or hear the train. From : . the time he made the.turn he was traveling South toward the crogsing with his back in:the direction from which the trahrwas coming that struck (him at the . crossing. .The train that struck the apriellee "was due at the station at 8 :30; hut it was-ShoWn (by, one of the witnesseslfor the appellee ;that the train-waS an hour. late. Appellee-'s - tegtimony tended to show. that about the time he u g ually arrived at Lafe in the. Morning, a •train from the ibuth----frOm ParagOuld,2-L. also 'arrived; and the appellee was 'expecting that train, and giving more•attention to . that (direction: - It ! was a cold, cloudy .day, and appellee had the curtains up . on his truck. :Titnesses testified to -the effect that they did not hear r the bell ring orthe whistle sound. Tinder the above testimony:the issues of negligence; contributory and . comparative negligence were for the jury, . The appellant next contends that the 'court erred ir subniitting to the+ jurY the question , as to whether-or not the appellant ? slfireman!failed to keep a loókont. tThe firemamteStified that he 'was keeping a loOkout, and,that he !sa* the aPPellee l as. g oon. as he canie- ont fiomt behind: the obstrUctions. ''It woUld unduly . 'extend -this .opini6n and could serVe.no useful purpose, to Set out and AiScuss in detail-- the : 'testimony of thefireinan 'to_ determine whether or not the court:erred in; submittin,g the quegtion of a failure to keep a lobkout , to the juiyi W re, have ble-amined the _testimony; and, have concluded that the .court did-not' err_ in submitting this issue. In : other words,„it was for t he jury to say whether -or not the, testimony ,of the . fireman, to the effect that he.kept a . lookput, ,was rea,4 sonable,, self-consistent, and uncontradicted, The.court's instructions on this issue were correct., , 3•: Connsellor appellant next cOntend that the-Conkt erredl in refusing to 'give its' prayer for"instrudioh; .No: 5: as !f011ow g ': :" Yon' are instructed( that; if you' f̀ind frobir the evidenbe ithat the 'defendant f en1Ploiees . "= farfed t o whistle for the crossing; bnt did ! whistle" .for the ,station;
96.9 Mo. P:Ao: :RAILROAD •CO. V. , ROBERTSON. : [169 and that such station whistle Was' a long blast; :and nearer the :station, than would havd •been: the. crossing Whigle, failure. to . give. the. crossing 'whistle- under, such:: circumstances would .not -be the prOximate-cauSej-of the' dui, ,- The:appellant concedes: thatthere was- testithony. sufficient., to; warrant the court:in submitting to.the jury the issne . as,to ,whether.or: not the statutory signals were given ,as,reqüired, by: i§ 8568 of ..C.: M: Digest. ..That statute requires theibell..,to !be . rung or: 'whistle• to , be sotindedlat a 'distance of eighty reds" •from the ,railroad otossing, -and , to be ,kept ringing or whistling :nntil • :the train_shalLhave crossedItheLsaid_road_or street. 'It 18'niaiiif0t; eVe'n thengh the Wlii[Stle: for the Station Wonid be lantamothit likewise to Sonnding fo i the: crosSirig,' nevertheless one l6ng bISt • sOinided for: the station or 'f Or : the croSsing Would not 'be a compliande 'With the statute, for the' 'Statute . reqnires that Ad' signal be given at m ,IdiStance of at -least eighty: . rods,, and that the same.:be kept 1:tp • until the. crossing is: passed... The: failure to givefthe statutoryisignäls is :evidence,anegligence, anetwh.ereJhe:teStimon'y shOws that sudh Signals were not given, it is.forthejury to :say, ginder the:dvide•ce, whether the::negligence i stich signals. was the proxiinateicause,.of the. injury. : See -Mo. Tac.. Ry. CO., v. Bode,. 168. Ark. :157.. Merefore,.• the ràppellant 'S prayer for instructioruNO.- 5:AvaS argumentative, and..the 'court did noterfin refusing' to• grantlhe same.-[ .• )., •: The appellant' nrgdS:r eversal l On'i.he . g .'riiiind that the 'Court 'erred '1/1 giving apPellee's 'Prayer fer . inatruc-tion No. '6 to' the effect 'that; &it appeared to the appellee befere dreSSing, . as a: reasonablY prudent tlersOn 'under the surriAnding' . 'circtimstanCes; • that greater danger Was to be 'apprehended' frota one• end -'of -the traCk 'than the other,.. appellee, might give more attention to: that Ad of., the, : track from' which he, apprehended 'the . greater danger. .The , court- had granted, appelle&s 'prayer: for in;, struption , Nn...-5, which in. fre.et'teld. -tile jury . that the ap= pelted iwcfpld ,Isot be; I gnilty% of contributory1 negligence
ARE:.] MO. PAC. RAILROAO CO: V. ROBERTSON. 961 unlesS "he failed to look both ways, and to listen for approaching trains, or to use ordinary care to avoid injury, stich as stOpping; if neCessarY, that he might better look .and liken," When the . two instructions are considered t . ogether, it is clear that there'is'no reversible error in giv- ing appellee's prayer . for, instr , uc . tio . n No. 6. - •. 5. It is argued that the. court erred in granting ap-prayer.for instruction No. 8 as follows : . "If you find that . the plaintiff was guilty of contributory negligence, you will, if you find for the plaintiff, diminish the amount . of the verdict in proportion to such contributory negligence : " •, This instruction did not correctly set forth the doctrine of . comparative negligence as prescribed in § 8575 : of 'C. & M. Digest, but appellee's prayer for instruction No. 14, 'which the court granted, correctly. set forth the statutory rule of comparative negligence, and, when the , :two .are read together, there is no conflict between. them, and •no prejudicial error resulted to the ap-• pellant in granting instrnction No. 8. A . similar. situation arose, in the case , of St. L. I. M. & S. Ry. Co. v. Kilpatrick, 155 Ark.,6:32-08, where we said, speaYing of an instruction preeisely, in the same language as that of appellee 's prayer, for instruction No. 8 ,in the case at bar : "This instruction will not be incorrect when other instructions are given conforming to the views herein expressed. It will not :then, : as counsel for appellant insist, permit a recovery, even though the contributory negligence of :ap-pellee is greater than that of the negligent employees of the railroad, for, when conformed to the views here expressed, the instruction will not permit a recovery unless appellee's contributory negligence is of a less degree than the negligence of the railroad employees, in which event it will be proper, as the instruction directs, to 'diminish the umount of the verdict in proportion to such contributory negligence.' " Appellee's prayers .for instruction Nos. 8 and 14, on the doctrine of comparative negligence, when taken together, certainly required the jury to find that appellee's negligence was less than that a
962 MO. PAC. RAILROAD CO. v. ROBERTSON. [169 the appellant's before they were justified in returning a verdict in appellee's favor. 6. -Counsel insists in the last place that the court erred in granting appellee's prayer for instruction No. 9, as follows : "If plaintiff was injured by the .running of a railroad train at a public, crossing, the law presumes that the injufy was negligently done; but the, railioad, to. avoid liability for such injury, maY show by a preponderance of the evidence that the 'injury was not the result of the hegligence of the railroad." Appellant made only a general objection to the instruction, and, when read in connection with the other- instructions which- the court grant sue-a s--co-eviturruitw a ,• gence, it cannot be said that the instruction is susceptible of the donstruction that it limited the appellant tO proving the absence of negligence on its part. On the contrary, when. the instructions -are read together; it occurs to us that the court's charge plainly told the jury that 'contributory negligence on the part of the appellee . was a complete defehse tO the action unless suCh contributory' negligence was'. of a less degree than the negligence; if -any,' on:the part of the-appellant. Where persons '.or property are injured by the running of trains in this . State, a 'presumption of negligence still:obtains, notwithstanding the statutory doctrine of comparatiVe negligence... See Davis. v. Scott, 151 Ark. 34. - There being- no reversible errors, the judgment is affirmed.,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.