• ARK.] JOHNSON V. POINSETT LBR. & MFG. Co. 237 • JOHNSON V. POIN-SETT LUMBER & MANUFACTURING COMPANY. • 4 4-2611 Opinion delivered April 17,1933.: 1. APPEAL AND ERROR—HARMLESS INSTRHOTIONS.—Where, in an action for Personal injuries, the only issue in the case was one of discovered peril, erroneous *instructions as to plaintiff
_ 238 JOHNSON v. POINSETT LBR. & MEG. Co. _ ,[187 being a trespasser and guilty of contributory negligence were not prejudicial. 2. RAILROADS — DISCOVERED PERIL— INSTRUCTION.—In an action_by a pedestrian struck by a motor car while walking on a railroad track, an instruction that the discovered peril began, if at all, • when it became apparent to the party operating the motor car that the plaintiff "was not only upon the track between the-rails but that she would remain there" held not error. Appeal from Poinsett Circuit Court ; G. E. Keck, Jqdge; affirmed. STATEMENT :BY THE COURT. This suit was brought by appellants, Georgia 'Ann Johnson and her husband, against the appellee, Poinsett Lumber & Manufacturing Company and another, in Pohl-- sett Circuit Court, to compensate an in:jury received by Georgia Ann Johnson on -the 17th day of OctOber, .1929. The appellee on the date aforesaid operated a railroad Southwest frOm Trumann for the puipose of hauling logs and the other appellee, M. T. Burns, was its woods foreman, and, in going to and from his work, Burns traveled over said railroad tracks on a small motor car. Singer Camp No. 1 is a small village located on this railroad, some eight miles south of Trumann. The railroad tiack extending south from Singer Camp is straight for about a mile or a mile and a half. People who live south of the camp have for a long period of time used the railroad track as- a path in going from their homes to the • camp and returning. This practice has been followed for a long number of years. Appellant, Georgia Ann j ohns'on, is about sixty years of age and partially deaf. Mrs. P. M. Robinson is a daughter of Georgia Ann Johnson and resided about a mile south of Singer Camp on the date of the injury, and Georgia Ann Johnson was going from her home in Singer Camp to that of her daughter, and, in doing so, was walking upon the railroad dump. Thus far the issues of fact in the case are practically undisputed. Mrs. 'Johnson had reached a point about a quarter of a mile south of the camp when the appellee, Burns, going in the same direction, overtook her on the motor car. According to the theory of the appellee, Mrs.
AIM.] JOHNSON V. POINSETT LBR. & M. Co 239 Johnson, in an endeavor to escape the approaching car, fell upon one of the rails of the track and the car ran up against her while in this condition. On the other hand, it is contended for appellants that the car ran against Mrs. Johnson and knocked her down. Mrs. Johnson suffered a serious injury to one of her arms and was other-. wise bruised and injured. Appellants made the following allegation in their complaint in reference to the injury : "On October 17, 1929, Georgia Ann Johnson was going from the camp to her daughter's home, about one-half mile west of the camp, and, according to common usage, was walking the beaten path between the rails of the roadbed, unaware of the approach of defendant's motor car. • As she . walked down the track, A motor ear driven by ' the defendant, Burns, approached, her from the rear. In driving said car he did not exercise due care or keep a constant lookout as the character of the place required, and about a quarter of a mile west of the camp, although having discovered the perilous position of plaintiff in time to avoid the injury, he carelessly, negligently, wilfully and wantonly drove said car against plaintiff, striking her just below the small of the back, knocking her down, running over her, breaking her left arm in the wrist and . inflicting injuries to her back, her breast, her face, her right hand and arm." The trial court submitted appellants' case _to, the jury upon the one issue, that of "discovered peril," and gave to the jury the following instructions: Instruction 1. "Gentlemen, in this case plaintiff sues the defendant for , damages that she says she sustained by reason of the negligence of the defendant in running its motor car oVer her or against her and injuring her. Her husband sues for damages on account of said injuries that he says he has sustained by reason of the negligence of the ' defendant in running its motor car against his Wife." Instruction 2. "If you find from a preponderance of the evidence in this case that the driver of the motor car discovered the perilous position of the plaintiff, Mrs. Johnson, upen the railroad track in time • to have pre-
240 JOHNSON v. POINSETT LBR.•& MFG. C [187 vented the injury by the exercise of reasonable care after the discovery of such peril, and further find that the driver of the. car failed to exercise such reasonable care to prevent the injury, after the discovery of the peril of the plaintiff, and that such failure was the proxi-mate cause of the injury to the plaintiff, if any, then your verdict would be for the plaintiff, even though you find that plaintiff herself was guilty of contributory negligence in walking upon the track." Instruction 3. "It was not the duty of the driver of the motor car to take precautions to prevent the injury until he discovered the peril of the plaintiff, and you are told that, even after he discovered the .plaintiff walking upon or on the railroad track, he had a right to presume that she would exercise ordinary care for her own safety, and it was not his duty to take precautions to prevent the injury until after he ascertained the fact, or should have ascertained the fact by the exercise of reasonable care, that she was not going to protect herself." • Instruction 5. "You are told, gentlemen, that everything goes out of this case except the question as to whether or not the driver of the motor car could have prevented the injury, after the discovery of the peril of tbe plaintiff, by the exercise of reasonable care, after the discovery of such peril. In other words, gentlemen, the court is telling you that that is the issue for you to determine,. consider in determining- whether or nOt the defendant is liable to the plaintiff for any injuries that she may have sustained." • Instruction 6. "If you find that, after the discovery of the peril of the plaintiff, Mrs. Johnson, by the driver of the motor car, that the said driver exercised reasonable care to prevent- the injury, after the discovery of such peril, then the plaintiff cannot recover. By the use of the phrase, 'exercise of reasonable or ordinary care,' the court means the same degree of care that a person of ordinary care, caution and prudence would have exercised under the same circumstances and . conditions." Appellants did not object either generally or specifically to any of the instructions aforesaid, and did not request any other issue be submitted to the jury.
ARK.] JOHNSON V. POINSETT LBR. & MFG. CO. 241 After the trial court had:given to the ;jury the instructions aforesaid on appellants' theory of the case; it gave to the jury the following instructions upon , appel-lees' theory : Instruction 7. "The court instructs you that;.under the evidence in this case, plaintiff, Georgia Ann Johnson, was guilty of contributory negligence in walking upon the track, that is, such want of ordinary care on her part for her own safety contributing td 'her injuries, and your verdict will therefore be for the defendant, unless you: further, find from the , evidence that, after Burns discovered that she was in peril, he failed to exercise ordinary care to 'avoid injuring her." TO' which instruction appellants objected and excepted. 'Instruction 8: "In ' this case 'discovered peril' be: gan, if at all, when it became apparent to Burns that plaintiff, Georgia Ann' Johnson, was not only upon the track between the rails, but that she would remain there, and that she would be strUck by the motor car unless' it was stopped." To which instruction appellants objected and excepted. Instruction 8. "That is, g. entlemeh, that the plaintiff was a trespasser in walking upon the railroad track; and, if being a trespasser at that time and place; she would be guilty of contribiitory negligence by being there, the railrbad ceniPany having the exehisive right to the' use of its 1 track." To which instruction'appellants objected and excepted. . The testimeny in the ca. e 'was aniplY' sufficient .-CO have sustained a verdict in behalf of appellants, had the jury determined this issUe in their behalf, therefore it will not be necessaty te , set out in detail the testimony. The jury returned a. irerdict in:favor of the appellee's, and this appeal is : prosecuted to reverse the judgment of the circuit court, based upon the verdict of 'the jury. Other facts will be referred to in the opinion. C. T. Carpent&r, for apPellant. Lamb ,ce Adams, for appellee. JOHNSON, C. J., (after stating the facts). It is . apparent from the 'allegations of the complaint that the only cause of action alleged or , relied uPon by appellants wa§
242 eTOHNSON V. POINS'ETT LER. & MFG. CO. '[1:87 based upon the doctrine of "discovered peril," or -that appellees, after discovering the perilous position of appellant, "carelessly, negligently; wilfully and wantonly drove said car against her," thereby inflicting the injuries complained of. The court, without -objections by appellants, submitted to the jury only the question-of "discovered peril" by giving to the jury instructions 1, 2, 3, 5 and 6. The fact is appellants acquiesced in the court submitting this issue only, as evidenced by the court's statement to the jury as follows : "Plaintiff is only requesting that the issue of discovered peril be submitted to. the jury." To which appellants did not object, but, on the contrary, tacitly acquiesced. Appellants complained in the trial court, and now complain; that the court erred In giving to the jury instruction No. 7, which told the jury as a raatter of law that appellant Georgia Ann Johnson's presence on the railroad track at the time of the injury was contributory negligence on her part, and by-telling the jury in instruction No. 8 that her presence on the track at the time and - place of the injury made her a trespasser as a matter of law. It was immaterial whether or not appellant, Georgia Ann Johnson; was a trespasser. It was also immaterial whether or not she was guilty of contributory negligence in being in the place she was at the time of the injury. The only question which should have been , submitted by the trial court was the one of "discovered peril." - We do nOt approve of the instruction of the trial _court in telling the jury as a matter of law that appellant, Geor-gia Ann , Johnson, was a trespasser. Neither do we approve of the form of the instruction telling the jury that she was guilty of contributory negligence in being at the place she was at the time of the injury, because those were not isues in the case and should not have been given to the jury. On the other hand, we cannot see how the jury was influenced by those instructions. The jury was told, in effect, that, regardless of contribUtory negligence and regardless of whether or not . appellant was a trespasser, yet she should . recover if _appellee, Burns, discovered her peril in tithe to avoid the irijury.
JOHNSON v. POINSETT LBR. & MFG. CO . .243 This court, in St. L., I. M. (6 S. Ry. Co. v. Cabintess, 113 Ark. 599, 168 S. W. 1116, held: "However, the instruction could not, in any view of the case, have operated to defendant's prejudice, for the reason that there was no controversy about the efficiency of the lookout. * .* * that state of the proof no prejtclice could possibly have resulted, even if the language of . the instruction was erroneous." • In a long line of decisions this Court , has , held: "Where the tights of 'the appellant W-e're it prejudiOd by the giving of an . erroneous instruction, the case shoUld .not be reversed." Lee Line Steamers v. Craig, 111 Ark. 550, 164 S. W. 274; Patterson v. Fowler, 22 -Ark. 396; Hel-lems V. State, 22 Ark. 207; St. L., I.. M. (6 S. Ry. Co. v. Phelps, 46 Ark. 485; Ark. Lbr. (6' Contractors' &ripply Co. v. Benson, 92 Ark. 392, 123 S. W. 367. - - We -cannot agree with counsel for appellants that there is any conflict in the instrUctions given .. by•the trial court. . Lastly, it is contended on behalf of appellants that the trial court erred in giving to the jury the last half of instruction No. 8, which told the jury that "discovered peril began, if at all, when it became apparent to Burns that appellant, 'G-eorgia Ann Johnson, was not only upon the track between the rails, but that she would remain there." There was no error in giving this instruction. Certainly appellant, Georgia . Ann Johnson, would not have been injured if she had remained outside the rails. It was an admitted fact in the lawsuit that Burns was driVing a small motor car, and there was no contentfon in the trial court that appellant would have been in any danger - had she remained outside the rails:• We think the uncon-tradicted testimony in. this case shows that,lad appellant remained outside the rails, she would Shave been in no danger. Trial courts should. be commended 'for narrowing down the issues for the jury's consideration; instead of condemning them for an honest effort to do so. No prejudicial error appearing, the judgment is affirmed.
- 244 --il0H-NSON 1).--P0INS'ETT -"ABR. & -MEG.- CO, [187 MEHAFFY, J., (dissenting). • I-do hot agree with the. majority in affirming this case. The Poinsett Lumber & ManufaCturing Company operated a railroad for the purpose of:hauling logs. The public used the railroad track, where appellant Was injured; as . a higthway. The track was straight for at least a quarter of a mile Appellee's employee, who was driving the car, testified that ; he. first saw her a quarter • of a mile ahead walking on the outside of . the :track ; that when he got within 115 or 200 feet of . Mrs. Johnsnn she stepped between the rails ' ; that he thought 'She intended to . cro'ss 'the track ; but he testified also , that she .started dawn the track, so that, according to his testimony, she , was , walking in front Of the car when she ' was from 175 to 200 feet ahead of him. There is no.testimony either by the employee who was operating the car, or any other • person, that she .looked back or did ahything to indicate that she knew the car was approaching. The omployee operating the car also testified that he was going twenty-five miles an hohr, and that .going fifteen miles an hour he could. stop the car within 75 or 100 feet. Ellis Renfrow testified that he lived . at Singer . Camp No. 1 and operated one of the motor cars ; that if the rails were dry, he cOuld stop the car when traveling 25 miles an hour in 60 to 90 seconds. JOe. Patillo testified that, if-the brakes were . in good condition, he thought he could stop :the car going 15 or .20 miles an hour in 15 or 2.0 feetrthat it . would fake 2 or .3 feet further to stop a car running 20 miles an hour than:it would one running 15; and possibly five feet NJ.- ther ruhning 25 miles an hohr. The evidence shoWed that at the PlhCe 101.6t6. appellant was injured the track was straight, and showed . that school children, and the public used this track , just as appellant waS using it at the time she , was injured. Ohe witness said: "There was a beaten , path in the center of the track. People going to church and -children.going to school from that directioh used the railroad track.. This fact was known to everybody in that community."
'ARK.] "JOHNSON V. POINSETT LBR. & -MFG. CO. '245 Fred-Henning; who had formerly lived at Camp No. I, testified that the road south of the camp was straight for about one mile; that people going in that direetion .used the-railroad -track; that there was a beaten path in the center of the track. Mrs. Franey Hamilton testified that she saw the accident; that Mrs. Johnson . Was going &Own the track and' did -not -loOk back.• She saw . the car approaching :her: 40 yards'hefore it- struck her. • -The car was going about -20 miles an hour; and-did nOt seem to slow up' a bit. - The court, at the requeSt of the appellee, gaye the following instructions: "Instruction 7. The . Courfin4ructs you that under th'e evidence in-this ease plaintiff,' Georgia'Ann Johnson, • was guilty Of contributory 'negligence in walking upon the track, that is, such want of Or:dinarf care on • her part for her oWn Safety contribUting to her . injuries, and yOur verdict Will therefore be for the defendant, *unless yoil further find from the evidence . that after Burns discovered that she was in peril . 116 failed to exerciSe ordinary care to avoid injUring her." "Instruction 8. In this -case 'discovered peril' began, if at all, when it became 'apparent te Burns that plaintiff, Georgia 'Aim Johnson, was not only upon the track between the rails, but that she would remain.there, and that she wOUld be 'str-Lick by the motor car unless it was stopped. That is, gentleinen, .that the:plaintiff was • trespaSser iii • -walking upon 'the . railroad track, and if, heing a tr e§P.sser at that time and' plaCe 'she would be 'guilty of contributbry negligence hy being there, the railroad company having the. excluSive right to the'uSe of its track." • • • • • I think the leariled trial judge should not_ have'given instructions 7 and . 8 copied above.' • ThiS Was a logging railread, and the place where appellant was injured was Constantly used by the public as a . footpath; and' , every-liody, including the en-iployees Of the railroad cbmpany, kriew . it: This being true. the question whether : appellant waS guilfy of ' contributory negligence was a question Of fact-for the jury.
246 JoaxsoN- V. P . OINSETT LBR. & MFG. CO. [187 In instruction 8 the court told the jury that discovered peril began, if at all, when it, became apparent to Burns that Georgia Ann Johnson.was not only up6n the tracks between the rails, but that she ,would remain there, and that she would be struck unless the car stopped. . ,• That might be true if there was anything about her appearance or behavior to indicate.that. she was aware of the approach of the -car. But, if there was nothing about her conduct to indicate that she knew, of . the.approach of the car, it was the duty of the. driver to immediately take precautions to prevent her injury. - When the. operator of an . engine or car sees one walking in front of the car with her back to the car, and apparently oblivious to its approach, he cannot presume that . she will get off the track. . If. she knew of the approach . of the c, q.r .or there:was anything in her conduct to . indicate that she kneW the car wa g approaching, the driver of the car, would have a right to presume that . she would step off the track. The jury should hav , e..been. told, insconnection with instruction No. 8, that, if the driver of the car, discovered the apPellant on the track between the rails, apparently unconscious of the approach of the car, he must immediately exercise . whatever care was apparently necessary to avoid striking her. If she was on , the track in front of the moving car, she was in danger, and the doctrine of discovered peril means that where the . danger . of inflicting an injury is discovered by the .person inflicting it in time to prevent the injury.by the .exercise,of.proper care, he will be-liable for- the injury if he does not exercise reasonable care, though the injury would not have occurred but for the previous negligence of the person injured. FurstEdwards (6 Co. v. St. L. Sw. Ry. Co:, (Tex. Civ. App.) 116 S. W. 1024; Chesapeake <6 Ohio
Ry. Co. v. Corbin's Admr.; 110 Va. 700, .67 S. E. .179 ; Mo. Pad. Ry. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849. This court said : "In this case the evidence 'tended to prove that the engineer saw the plaintiff walldng so near-the track that her situation was perilous ; her back
ARE.] JOHNSON v. POINSETT LBR. & MFG. '247 was tbWards the train, and a bOnnet Was over her 'head, so that it was apparent that- she 'was oblivious to her danger. This was apparent to the engineer at a distance when , he- could by ordinary effort have stopped the train before striking "But the defendant is . further ' liable because its engineer saw the plaintiff ahead' and so near the track that she would be struck by the passing train; and that she gave no evidence that she was aware of the approach of the train; and after thus discovering her perilous situation the . defendant negligently failed to give any warning Signal oT • the danger." St. Louis S. W. , Ry. Co. v. ThOmpson, 89 Ark. 496, 117 S. W. "The most obvious suggestion o.k prudence- and social duty requires that the engineer who is driying the train shall givb warning signals to a trespasser, whom he . sees on the track in front of the . train with his back to it, in sufficient time to enable him, after hearing the signals,. to quit the track im-safety ;. and this : is .so, although the trespasser suddenly and unnecessarily assumes, a place in dangerous proximity to the track." Vol. 2, Thompson on Negligence, § 1741. When -one discovers a person on the track with his back to the approaching Or, and there is' nothing to'indi,- catei that the person is aware of the approach Of the car, it is the duty of the driver of the car to giVe extra alarms, and, if the alarms are not heeded, then to check the. speed or stoP the car. St. Louis, I. MI .ce So. Ry. Co. v. kvans, r 74 Ark. 407, 86 S. W.' 426: . .The evidence in this case Shows that the . driver discovered the ; pedestrian in' front of the car with-her hack to him, apparently oblivious to the apprOach of • the car, and it does not show that he took any precaution at all until too late to . avoid _the injury. If one can operate a car or a train running directly toward the Person on the ' track, when such person giVes . no indication that the approaoh of the car has been observed, and, without giving any alarm, strikes such pedestrian, then the doctrine of discovered peril would be meaningless.
248 -JOHNSON v-.-POINSETT LBR. &- MFG. One's peril is discovered when he is seen walking in front of the train and apparently oblivious to its approach, and the driver should not wait until it becomes apparent that the pedestrian was not going to get off the track. It might not become apparent to the driver until he struck the person. - It was not proper to tell the jury that her peril was not discovered, if at all, until it became apparent to Burns that she would be struck by the motor unless it was stopped. Her peril was discovered when she was seen in a situation of danger of which she was ignorant. I think also that the clause in the instruction, "if at all," might have been interpreted by the jury as an expression of doubt by the court as to whether her peril Was discovered or not. . • There are two instructions numbered 8 in the aria-stract, arid the second one tells the jury thai Mrs. Johnson was a trespasser. Under the evidenCe in this case she was a licensee, and the jury should not have been told that she was a_trespasser. To be sure, this case was tried on the theory of discovered peril, and there would be no difference in the liability of the appellee under that theory, whether she was a licensee or trespasser, but telling the jury that she was a trespasser was equivalent to telling them that she was a Wrongdoer, because every trespasser is a wrongdoer, but a licensee is not neces-. sarily a wrongdoer. The court should not have told the jury that she was a trespasser. • I think the court should not have told the jury when appellant's peril was discovered. That was a question of fact for the jury. The jury -should have been told what -. constitutes discovered peril, and then the jury should. decide whether, and when, her peril was discovered. I therefore think that .the case should be reversed. I am authorized to say that Mr. Justice HUMPHREYS and Mr. Justice KIRBY agree with me.
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.