722 MO. PAC. RD. CO ., GUY A. THOMPSON, ET AL., [193 v. CREEKMORE. ET AL. MISSOURI PACIFIC RAILROAD COMPANY, Gu y A. THOMPSON, ET AL., V. CREEKMORE, ET AL. 4-4638 Opinion delivered March 1, 1937. 1. APPEAL AND ERROR.—In an action against appellant to recover for injuries sustained when struck by a train at a crossing, evidence on the question of negligence of the train crew held ample to submit the question to the' jury, and its finding is conclusive on appeal. 2. RAILROADS—PRIMA FACIE CASE.—The plaintiff, in an action to reCover damages sustained when struck by a .train at a crossing, made a prima facii case by showing that the injury and damage were done by the operation of a train, and-the burden was on the appellant to ihow that it was not guilty of negligence. Craw-ford & Moses' Dig., § 8562. 3. RAILROADS--CONTRIBUTORY NEGLIGENCE.—While it is the duty of a traveler approaching a railroad crossing to exercise reasonable. care for g is own safety, contributory negligence does not, in an action against a railroad company for damages sustained at a crossing when struck by a train, bar his right of recovery, unless his negligence is equal to or greater than that of the railroad company. • • DAMAGES.—In an action by the administrator to recover damages for the death of his intestate, he was entitled to recover, where there was:no' conscious pain, foi the benefit of the widow and next of kin whatever the evidence showed that he would have
ARK.] MO. PAC. RD. CO ., Gu y A. THOMPSON, AT AL., 723 v. CREEKMORE, ET AL. contributed to his wife and child and, in addition, a reasonable sum for the loss of parental love, care and training; and evidence held sufficient to sustain a verdict for $17,000. 5. INSTRUCTIONS.—There was no error in refusing to give a requested instruction telling the jury that the injury resulting from the collision did not carry any presumption of negligence, since it avas not a correct statement of the law. Crawford & Moses' Dig., § 8562. , Appeal from Crawford Circuit Court; J. 0. Kincan-non, Judge ; affirmed. Thonias B. Pryor and W. L. Curtis, for appellants. Partain ce Agee and D. H. Howell, for appellees. MEHAFFY, J. The appellees filed separate suits against the trustees of the Missouri PaCific Railroad Company, and aeorge Watson, engineer, .and J. 0. Lockhart, fireman, to recover damages for the alleged negligence of the appellants, where the highway crosses the railroad track near Charleston, Arkansas. Several acts of negligence were alleged. Lynch Creekmore sued for damage to his truck, and alleged that it was damaged in the suth of $3,000. Pete Shelby and Virgil Reddick filed suit for $10,000 each for personal injury. C. R. Thompson, administrator of the, estate of Hubert McNulty, filed suit for $25,000 for the benefit of the estate of 'McNulty, and $25,000 for the benefit of the next of kin.. The trustees of the railroad company filed petitions and bonds for removal to the federal court. The petition was overruled, and the appellants filed answers, and the cases were consolidated for trial.. The trial resulted in a verdict and judgments 'against the railroad • company nnd George Watson, the engineer, as follows : For Lynch Creekmore, $500 ; for Pete Shelby, $2,100 ; for Virgil.Red-dick, $2,000 ; for C. R. Thompson, administrator, for benefit of the widow and next of kin, $17,000. The jury found in favor of appellants on the cause of action for the benefit of the estate. Separate motions for a new trial were filed and overruled, and appeals prosecuted to reverse these judgments. The appellees alleged that a truck with a trailer attached, the trailer being a 24-foot inclosed furniture van, driven by Pete Shelby, one of' the appellees, approached
724 Mo. PAO. RD. CO ., GUY A: TnompsoN, ET AL., [193 N. CREKKinoRE, E:T AL4 the crossing t yn highway 22 near Charleston, traveling in a westerly direction, the crossing being the highway crossing with the track of the railroad company, and that a . freight train, approached the crossing from the north; said freight train had two locomotives in front of the rest of the train, one locomotive immediately before.the other ; that the first locomotive was in charge of George -Wat-son, as engineer, and J. 0.. Lockhart, as fireman. It was alleged that' the train aPproached the highway crossing without ringing the bell, blowing the whistle, or giving any other ' signal or warning of its .. approaCh, and tbat it was being operated at a dareless, negligent and reckless • rate , of speed, fifty mileS : an hour' ; that tbe engineer and fireman .negligently failed to- exercise ordinary .care to -keep and Maintain a lookout, and that as' a result Of their negligence, 'appellees were damaged as alleged in 'their separate contplaints. • - The crossing of the railroad tradk and the highway is an extremely dangerous one. In 'approaching the track, from* the direction in which said truck :was . approaching, -the view 'of the train, approaching frchn 'the- direction in Which this (Alb was approaching, is entirely obscured and obstructed; and it is inipossible for a. person: approaching on said highway tO determine or know Of, the ' approach of a train on said track from the north unless some signal or warning either by ringing the bell or blowing the whistle or otherwise :of the 'approach of said train to said crossing to •arn travelers along said highway. Each- ap-pellee alleged the same acts Of negligence and each appel-lee described the injuries and 'damage. McNulty, for whose death C. R.- Thompson, 'administrator, brings suit, was killed and Pete Shelby • and Virgil Reddick -were injured, and Creekmore's -truck was* damaged: • • The appellants-filed separate answers in which they denied all of the material allegations -of the- complaint, and alleged that the injury and damage were caused wholly as -a . result cf the- negligence of appellees. The. answers then set out the specific acts of negligence charged against appellees. A- crosscomphtint was filed by the railroad company alleging -that Creekmore's agent negligently drove the
ARK. _I MO. PAC. HD. CO ., GUY A. THOMPSON, AT AL., 725 v. CREEKMORE, ET AL. truck and trailer against the locomotive of appellants and damaged same. There is no dispute about the collision; and no dispute about the crossing being a very dan-werous one. The appellants contend for a reversal, first, because they say tbe evidence is not sufficient to justify a finding in favor of appellees, and that their requests for a verdict in favor of appellants should have been given by the court. There is some conflict in the evidence as to the speed of the train. The testimony on the part of the appellees shows that the train was traveling at a rate of about 50 miles an hour. The appellants' witnesses testify, however, that it was going about 30 miles an hour. The undisputed evidence shows that after the engine struck the truck it carried Reddick on the pilot a quarter of a mile- 'beyond the crossing before it stopped. The undisputed evidence also shows that nothing was done by the enginemen to stop the train or to reduce its speed. Lockhart, the fireman on the engine, testified that when the engine got to the whistling post he saw the lights of the truck and called the engineer's attention to it. He saw the lights ,first when . they came out of the cut. The engine at that time was about 200 feet from the crossing. He saw the truck coming down the hill and saw it slow down. The fireman, therefore, knew that the truck was approaching the crossing, knew it was a dangerous crossing; the highway and railroad track were both in the cut .so that the persons in the truck could . not see the train until they got almost on the -crossing. Watson, the engineer, testified,- when asked what he did with reference to the crossing, that he whistled and rang the bell. He saw the lights -on the bridge, but he said he did not know. what it was. He knew it was something. He did nothing, according to his own testimony, to check the speed of the train as they approached the crossing. When asked what he did about stopping the train, he said lie did nothing until he felt the impact. Watson was asked if he could see the left-hand side of the track. He answered that he looked out on his side of the cab. He was then asked if he-refused to answer the ques-
-726 Mo. PAC. RD. CO .., GUY A. THOMPSON, ET AL., [193 V. CREERMORE, ET AL. •tion about being •able to see on the left-hand side, and he said: "[refuse to answer that." The evidence is in conflict as to whether the whistle was sounded or the bell rung. Lockhart, the fireman, testified, that, when: he saw the truck coming down tbe hill he told : the engineer, and the engineer undertook to start the bell•to . ringing, but it stuck and he, Lockhart, finally started it. The engineer and fireman on the second engine and the conductor on the train, as well As the engineer and fireman •on the first engine, all .testitied about giving the• alarm, but their testimony was in conflict. One witness testified that he heard the alarm at the time he felt the.emergency brake applied. This, of course, means that the- brake was. not applied until about the •time the engine struck the . truck. The evidence • on the question of negligence of the train . crew is in conflict, and it would serve no useful pur-pose- to-Set it out in detail. The evidence was ample to subthit. the question: to: the jury, and its finding is . conclusive here. • As to the railroad-company, when it was shown that -the injury and damage were done by the operation . of a train,. this made a prima- facie case, and the burden was on the railroad company to show that it was not guilty of negligence. It not only failed to discharge this burden, bra the fireman' testified that he saw the truck approaching the crossing, and -nothing was done to avoid • the injury, and the engineer _refused to answer or State whether he could see out- on the side from which the truck was approaching or not. • This court has said: "We will not reverse the judg-•ment because of the 'insuffiCiency 'of the evidence, for, as we view this evidence, it is net physically impossible that •appellee Wa§ injured as the result of • stepping into an un-• blocked frog, although it is highly- improbable- that the • injury was caused in that manner." Missouri (0 N. A. Ry. Co. v. JohnsoU, 115 Ark. 448, 171 S. W. 478. •The fact: that this "court would have reached • different conclusion had the judges sat on the jury, or that they are • of the opinion that the verdict is • against the
ARK.] MO. PAC. Ro. CO., GAM: A. THOMPSON, AT AL.; 727
v. I CREEKMORE, ET AL. preponderance of the evidence, will -not warrant the setting aside of a. verdict 'based on conflicting evidence. "The verdict of a jury cannot properly be disturbed on appeal merely because of its appearing to he against the clear weight of the . evidence, or because, if we were to pass upon the matter a' S seen in the Printed record, ye might find differently than the jury:did. If the , verdict has any credible evidence to support it, any which the jury could in reason have believed,leaving all mere conflicting evidence, evidence* short of matter of common knowledge, conceded or unquestionably established facts and physical situations, it is proof against attack . on appeal, and that must be aPplied So' strictly, on' adcount the superior advantages of Court, and jur r ,for•weighing the' evidence, that the judgment of the latter apProVed by the former is due tnprevail, unles . s it apPears so lad-. ically wrong as to have no reasonable probabilitieS in its favor after giving legitimate effect to . the presumption' in its favor and the 'makeweights reasonably presumed to have been rightly afforded below whiCh do' not appear; and could not be made*to appear, of recOrd." •BarlouPy: FOster, 149 Wis. 613, 136 N. W. 822 ;' Baldwin v. *Wilig•-• field, 191 Ark. 129, 85' S. W. (2d) 689 ; MathiS v. MeWes., 191 Ark. 373, 86 S. W. (2d) 171; Coca-Cola Bottling Co. v. McNeece, 191 Ark. 609,87 'S. W,: (2d) 38 ;_Manhattan Const. Co. v. Atkisson, 191 Ark. 920, 88 S.-W. (2d). 819: As to the conduct of the appellees;:the eVidence tend§ to show that at quite a distal:tee from the crossing the truck was slowed' down to approXitaately ten ' , miles. pe'r hour, and the parties . in the truck.looked-andlistenedand were unable to see' any train approaching, and unable. to hear the bell or whistle; or any, other signal or warning. There was testimony tending to show that the whistle was not sounded and the bell was , not rung, and ps to whether they or anY of' thein were iqiity of centriblitory negligence, was . a. question . fOr the jnry.." • ' It is* the duty of a traveler apprOaching a railroad crossing to exercise reasonable care, such care as. of ordinary prudence would 'exercise Under thn circumstances; but if appellees • -: Were guilty - of contributory' negligence, this does • not bar recovery :against the . rail-
728 Mo. PAC. RD. CO., GUY A. THOMEgON„ ET AL., [193 v. .CREEKMORE 7 ET AL, road company, unless their negligence was equal to or greater than that of the railroad company and the jury was properly instructed on negligence and contributory negligence. , It is next contended by appellant that the verdict is excessive: It is conceded, however, that this contention is without merit as to the Lynch Creekmore case. McNulty was killed, and though he lived a short while, the evidence tended to show that he did not suffer any conscious pain, and therefore the recovery by the administrator, was . for the benefit of the widow and next of kin only. McNulty was a young man 23 years of age, had a wife .and child. His expectancy was something more , than 40 years. The evidence showed that he had steady employment at a . .time ,when many persons of his age had no employment at all, and it was reasonably certain that his earning power would increase. The. appellee was entitled to recover for the benefit of the widow and next of kin, whatever the evidence showed that he would contribute to his wife and child, and • in addition to that, a_ reasonable sum for the loss of parental love, care and training. • • In the case of Southwest Power Co. v. .Price, 180 Ark. 567, 22 S. W. (2d) 373, this court held that $30,000 was not excessive where a young man 23 years old was killed and the young man killed left a wife and one small child:• The question of the amount, as well as the question of liability, was a question of fact to be determined by the• jury. We have no 'right to disturb a verdict because we think it is eXcessive, unless we can say there is no substantial evidence to support the amount awarded. As to the verdicts in favor of Shelby and Reddick for $2,100 and $2,000 respectively, appellants argue that they are excessive, and , that the testimony does not show sufficient injuries to justify these verdicts. What we have said about the finding of the jury in the McNulty case applies to these cases. They were submitted to the . jury on proper instructions and there was
ARK.] MO. PAC. RD. CO ., GUY A. THOMPSON, AT AL., 729
v. CREEKMORE, ET AL. no evidence to show •that the verdiets were the result of prejudice or passion, or that they were excessive. It is next contended by the appellant that the court erred in not removing the case to federal court when appellants filed their petitions and bonds for removal. The petition in the instant case is substantially the same as the petition filed in the case of Mi,§souri P. Rd. Co. v. Miller, 184 Ark. 61, 41 S. W. (2d) 971, and this question is controlled by that case. Appe ll a it t next contends that its instruction No. 4, requested in the •Creekmore case, should have been given. It concedes, however, that the instruction did not state the rule correctly as applied to the railroad company. The jury was properly instructed with -reference to the liability of George Watson, and instruction No. 4 was not requested as to Watson alone, but merely told them that the injury resulting from the collision did not carry any presumption of negligence -Oh the part of the defendants, This was not a correct statement of the law, because as to the railroad company the injury caused by the running of trains does carry the presumption that the company was guilty of negligence. • Instruction No. 2 complained about told the jury, in effect; that the plaintiffs could not recover unless they established by a preponderance of the evidence that the accident was wholly a result of the negligence of defendants: The statute expressly provides that a recovery may be had, although the plaintiff may have been guilty of contributory negligence. Section 8562 of Crawford & Moses' Digest provides that railroad companies shall be responsible for all damages to persons or property done or caused by the running of trains, and this court has repeatedly decided tbat when an injury is caused by the operation of a train, a prima facie case of negligence has been made out against the company. On the question of keeping a lookout, provided for in § 8568 in Crawford & Moses' Digest, the burden is upon the railroad company to show that it 'kept a lookout. • Appellant also objected to some of the instructions given at the request of the plaintiff, but we have care-
730 [193 fully examined all the instructions given and refused, and are of the . opinion .that the jury was correctly instructed as to the law. • • - It would serve no -useful purpose to set out the instructions and disciiss them in detail. We .lind no error,. and the -judgments are 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.