ARK.] BLYTHEVILLE, L. & A. So. Ri. CO. V. GESSELL, 569 BLYTHEVILLE, LEACHVILLE & ARKANSAS SOUTHERN RAILWAY COMPANY V. GEssELL. • Opinion delivered May 7, 1923. 1. RAILROADS—LOOKOUT STATUTE—DUTY OF TRAIN OPERATIVES.— While the lookout statute (Crawford & Moses' Dig., § 8568) imposes upon a railroad company the duty of keeping a constant lookout and makes the failure to keep this lookout the Y proxi-mate cause of such injuries as could have been averted if the lookout had been kept, the train operatives have a right to assume that a traveler or pedestrian approaching a railroad track will act prudently, and their duty to take precautions begins only when it becomes apparent that the traveler, at the crossing will not do so. 2. RAILROADS—LOOKOUT STATUTE—INSTRUCTION.—An instruction which makes it the duty of train operatives to take precautions - upon discovery of the presence of persons near the track, instead of upon discovery of their peril, is reversible error where specific objection is taken. Appeal from Mississippi Circuit Court, Chickasaw-ba District; W. W. Bandy, Judge; reversed. -
570 BLYTHEVILLE, L. & A.. So. ll. Go. v. CESSELL. [158 Little, Buck & Lasley, for appellant. Assuming that the court will follow the harsh construction of the lookout statute made in 108 Ark. -326, it is still insisted that there was no testimony Showing that a.ppellee's peril could have been discovered, had the lookout been kept, in time •to have prevented the injury, and the court should have directed a verdict for. appellant. Appellee's contributory negligence barred him from recovering for appellant's failure to give crossing signals. 97 Ark. 410; 90 Ark. 21; 149 U. S. 43; 61 Ark. 549; 76 Ark. 231. Both instructions given by the court are erroneous. Costen & Harrison, for appellee. The facts in this ease are stronger than those in St. L. & S. F. Ry. Co. v. Champibn, 108 Ark. 326, where the lookout statute was correctly 'construed. As to the question of 'contributory negligence on the part of ap-pellee, the facts •ere are strikingly like those of 138 Ark. 589. See also 115 N. E. 753; 125 N. E. 793.; 262 Pa. 421; 105 Atl. 636; 173 Pac. 1117. Instruction numbered one was .not subject to objections made thereto nor erroneously given. A very similar instruction was approved in 102 Ark. 386; 107 Ark. 431; 105 Ark. 294. Appellant might have been entitled _to an instruction more specifically presenting its view, but asked none. 111 Ark. 229; 102- Ark. 322; . 78 Ark. 55. Instruction number 2 was given at appellant's request. SMITH, J. Appellee recovered judgment for damages to compensate an injury done to an automobile truck by being struck by one of appellant railroad company's locomotives. The collision occurred near the city of Blytheville about three o'clock in the afternoon of De-cember 31, 1921. It was alleged, and there was testimony from which the jury colild have found, that no signal was given and no lookout was kept as the engine 'approached the crosSing. It was also alleged, that the engine was operated at a dangerous and excessive-rate of speed, but the wit-
ARK.] BLYTHEVILLE; L. & A. SO. BY. CO. v. GESSELL. 571 nesses who testified on this subject stated the engine was running seven, eight ot nine miles an hour.: Appellee testified that, when he- got within about fifty yards of the crosSing, he shoved the clutch into - neutral, and then looked to the right and then to the left to see if a train was coming. He saw some empty box-ears on a sidetrack, but no train, and then turned his attention to driving his car 'aeross the track. He also testified that he applied his 'brake as he approached the erossing. The undisputed testimony shows that, notwithstanding the cars on the sidetrack, appellee had a clear view of the track before driving on it for a distance of a hundred to one hundred and fifty yards in the direction from which the engine approached. No testimony was offered on behalf of the railroad company, except that developed in the cross-examination of appellee and his witnesseS, and the jury no doubt found that the engineer on the locomotive did not keep a lookout nor give signals, and that the driver of the truck was guilty of contributory negligence. After striking the truck the engine ran only four or five car-lengths. • It is apparent from the instructions given that ap-pellee predicated his right to recover upon the 'amended lookout statute appearing as § 8568, C. & M. Digest. This statute has been construed as imposing upon, the railroad company the duty of keeping a constant lookout, and makes the failure to keep this lookout the proximate cause of such injuries as eould 'and would have been averted had the lookout been kept, if the employees in charge of the train could have discovered . the peril of the person 'injured by keeping such lookout, in time to: have prevented the injury, by the exercise of reasonable care after the discovery of _such peril, notwithstanding the contributory negligence of the person injured. St. L. & S. F. R. Co. v. Champion, 108 Ark. 326; St. L. S.W. R. Co. v. Muirphy, 125 Ark: 507; C. It I. &- R'Ry. Co. V. Scott, 123 Ark. 94.
572. BLYTHEVILLE, L. & A. So. RY. CO. v. G-ESSELL. [158 The,court gaveyat apPellee's request, an instruction. 'numbered 1, reading as follow's: "Yon. are- instructed that it was the dutycf the defendant, of the employee,s of the defendant, ifs employees in charge of the engine and train in question, to keep a Constant lookout for persons or property on or near its track, and in this case, if you find from a preponderance of the evidence that the engine of defendant, while being operated by defendant, on its track, at the time and place claimed by plaintiff, struck plaintiff's truck, that said truck, as a direct and proxi-mate result of the' striking of said truck by said engine, wa g damaged, and you find from the evidence that the defendant or its employees failed to keep a constant lookout for persons or property on or near its track; and further find that, if such lookout had been kept, the employees of defendant could have discovered the truck in time to have prevented the engine 'striking the same, if -you in fact find the engine struck the truck, and have prevented the injury complained of, your verdict should be for the plaintiff, and this -notwithstanding the fact that plaintiff himself was guilty of carelessness or negligence in the driving or management of the truck which contributed to the injury." To this instruction the specific objection .was made that the statute did not apply until both the presence and the peril of the truck was discovered, or could have been. In our opinion, the instruction should have been modified to conform to this cbjection. The operatives of trains :have the right to assume that a traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in faCt, stop before placing himself in peril, and the duty of the railroad em-ployees-to take precautions begins only when it becomes appa _ r ent that . th . e traveler at' a crossing will not do* se. The statute referred46 iniposes up _ on the railroad the duty to maintain a constant lookout, and charges it
ARK.] 573. with the • re sp onsibility of haVing -seen what nld have been seen, bad this lookout been. kept, thid impOSes .the -.earner the . degree of. care -it shOuld have -ekercised had the lookont been kept and the traveler's penl thereby observed; and if, by keeping this lookout, the railroad. company could and would have discovered the traveler's peril in time to avert the injury, it is liable if it :1-ails to do so, notwithstanding_ the fact that the travelet-s contributory negligence placed him in peril. But it does no more than this. The duty of the railroad:to take precan-tions - begins when it discovers, or should have discovered, the peril of the, traveler. So here the railroad company - should have kept the lookout, -and is chargeable with -such knowledge as it would have had had the lookout been kept ; but if the Jookout had, in fact, been kept and ap-pellee's presence near the track discovered, this would have imposed . no duty on the railroad to stop the engine or to take other precautions until the peril of the traveler wa g discovered. In other words, the instruction as given does not distinguish between the presence of the truck and the peril of the truck, and this should have been done when the specific objection to the instruction was made, and the failure to so 'modify the instruction was . error.- No -other error appears. . Judgment reversed, and cause remanded..
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.