ARK.] MO. PAC: RD.. CO. V. SANDERS. 1099 MISSOURI PACIFIC RAILROAD COMPANY V. SANDERS. 4-4632 . Opinion delivered May 3, 1937. EVIDENCE.—Testimony of the engineer in charge of the train to the effect that he was keeping a constant lookout, and that he saw the approaching automobile in which the deceased was riding when it turned to cross the railroad tracks must be accepted as true, since it . was not contradicted by any other evidence. 2. RAILROADS.—While the proof discloses that the rate of speed at which appellant's train was running at the time of the crossing
1100 MO. PAC. RD. CO. v. SANDERS. [193 accident, it also discloses that the speed was not unusual for trains of that character, and, therefore, not negligence on the part of appellant. 3. NEGLIGENCE—PROXIMATE CAUSE OF INTURY.—Sinee the crossing accident in which appellee's intestate was killed would not have occurred, if • deceased had taken proper precaution for his own • safety, his negligence was held to be the proximate cause of the injury and a verdict should have been directed for appellant. Appeal from White Circuit Court; W. D. Davenport, Judge; reversed. Thomas B. Pryor, H. L. Ponder, Jr., and H. L. Ponder, for appellant. John E. Miller, C. E: Yingling and Tom W. Camp-bell, for appellees. • BUTLER, J. Two separate actions brought by John Q. Adams, administrator, and Mrs. Katherine F. Sanders, adniinistratrix, for damages for the deaths of their respective intestates were consolidated for trial in the court below, where there were verdicts and judgments in favor of the two appellees, and, as consolidated, presented here on api)eal. The: casualty out of which this lawsuit arose oo-curred about 10:30 a. on October 23, 1931, at a railroad• crossing in the village of Higginson, Arkansas. E. H. McDaniel was driving a Buick sedan and Alfred M. Sanders was riding on the seat beside him. They were traveling south on highway 67E which runs parallel with the line of appellant railroad company. As they turned from this highway onto highway No. 11, which crosses the railway approximately at right angles, their automobile stalled or stopped at, or about, the center of the .railroad track and a moment after was struck by a south-bound passenger train. At this point the railway consists of two main tracks running north and south. The track on the west is used for south-bound passenger trains. To the east of this track is one used for north-bound passenger trains. Highway No. 11 crosses directly over these tracks from west to east. Parallel with the tracks, on the west side thereof, runs highway No. 67E. This •highway intersects with highway No. 11 in the town of Higginson,
ARK.] MO. PAC. RD. CO . v. SANDERS. 1101 which highway crosses the tracks as aforesaid, and is the principal crossing in that town. Between highway No. 67E and the main line .of railway, one hundred and forty yards north of the crossing, is situated a depot, a building 20 x 60 feet. About 100 yards north of the depot is a track known as a "passing" track which connects with the several tracks by switches. Also, about 100 feet , north of the depot and between it and the passing track, the Rock Island Railway crosses the, Missouri Pacific. Approximately 980 feet. north of the crossing, on the same side of the railway as the depot, is a temporary track. At the time of the accident in question there were a number of bunk cars standing on the temporary track. A train of cars of some description was on the passing track about 100 yards above or north of the depot, its engine being engaged in switching operations north of the Rock Island crossing. A local freight train was standing on the east track headed north and extending some distance south , of the depot, which distance was estimated by some of the witnesses at about fifty yards. To the west of the railroad tracks, on the same side as highway 67E, is the usual line of telegraph and telephone poles. The above situation is established by the unanimity of the testimony and we find but little dispute in that relating to the movements of the passenger train and the automobile immediately preceding, and at the time of, the collision. The train was traveling at a speed of 65 to 70 miles per hour. The usual blasts of the whistle were giVen for the crossing and were continued at least until the train reached the Rock Island crossing. Appel-lees contend that from that point no further signals were given. We think the evidence leaves this question in doubt When vieWed in -the light most faVorable to the ap-pellees. It seems, however, that there is some evidence tending to show that • the whistle was not blown or bell sounded from the depot south . to the crossing.. On the particUlar question of where the operatives of the train ceased to give the alarm, there is conflict in the evidence. Many witnesses corroborated the . testimony of the engi-
1102 Mo. PAC. RD. CO . v. SANDERS. [193 neer to the.effect that the whistle was blown continuously from above •the Rock Island crossing until the -crossing of highway No. 1i •was reached. However, :we must accept the testimony evidently accepted by the jury that there was in . fact no .signal given, after- the train passed the Rock Island cressing; • On the question 'as , to the extent of the view' to the rierth of : one apprOaching and entering the 'crOsSing from the west,'as did appellees' intestate, there is some Conflict in the evidence.' "All the Witnesses, hoWeveri testified that there 'are no Obstnictions io prevent' a' view of the track tO the north brie-feurth of a mile from where ithe autothobile : turned frem highway : No. : 67E onto highWay No. 11, 'or from- that point to • ' the railrOad . as far north 'as the' depot. 'At 'eighteen feet WeSt of the track a point is reaehed *here 'the view Of the tracks : beyond the south end of the' dePot is , obstructed,-and i atapprOxil Mately fifteen feet West 'of' the-tracks; the view . is mi-obstrricted for 'a considerable 'distance further north' Of •• • • • '0' .There : is no diSpute iri the testimonY relating thrtEe movemerit of thOantothobile in : which 'McDaniel and Sari-ders were riding just before, and at the time, they'were killed. When they reached the intersection of highways Nos. 67E and 11 and turned to go over the crOssing; they were apparently oblivious to the train approaching 'from the north although it is quite certain that all persons within , the vicinity at that- time knew of its' approach and- that its • whistle Was ibloWing, and realized from 'the movement of 'the automobile that- a collision 'waS imminent. One Of these. in particular; Banks Pilkingten,- :testified that he was on the west side of the- track approaching the• crossing and intending to pass over it , when he saw the, approaching train and heard it hitting the rails. He had some buSiness to attend to adross the tracks,. but when he heard the train' whistle 'he. perceived, as •he. expressed it, that he `-‘vas going to be short on time, * * and I decided I.had more time than they did . and I Would wait fOr them to cross arid then go ahead." • Just at this Moment: witness saw , the automobile in question about
ARR.] MO. PAC. RD. CO. V. SANDERS. 1103 • forty feet from the railroad Crossing, it, having just turned off highWay 67E toward the crossing. At that particular point the view of . the occupants of the car was obstructed by the depot and witness attempted to warn them of the imminence of the danger by shouting and waving his, arms. His efforts,to warn was seen by another witness, but the occupants.of the automobile paid no attention to him, and passed so close •to,him that he could have touched the side of .the car. It appeared to witness as if both men: in the car. 'looked toward the north, but they did not stop Or slacken speed, driving directly .upon the railroad in front of the oncoming train; where, for some reason unknown to:anyone, the car canto to a stop. At the time the automobile reached the pOirit where witness was standing, some twelve or fifteen feet from the tracks, the engine; was in proximity : to 'the de pot. The automobile' , was traveling at a slow rate of speedestimated at from twelve to fifteen milos perhour -7 -from the time it, left highway 67E until-it reached the railroad track., A short , interval of tinw elapsed betWeen the stopping of: the 'automobile .on the track and ;the impact of the train upon it, which, in the opinion Of some of the witnesses, was sufficient' , for the autoinobile to havO cleared the . track if it had wit stopped. A number of witnesses were in the vicinit At the time , of the aceident and tin .somewhat -varying terms described the incident; but-we think the fair effect of these statements presents the 'situation as aboVe narrated., , • • , , • - At the close 'of the'teStimbny, tho hiipellahts inOired for a directed verdict,,and, the refuSaLof the trial court to so direct is the principal , ground presented for,:re-: versal. This is: baSed "upon the , c6ntentien- (a), that no negligence on the part Of the appellants is 'established, and (b) that the :negligence'Of the, driver of thei autotho-bile was of a degree equal to, or greater, than; that .6f the operatives of . appellants' train. ;The, appellee's con-. trovert :this contention, and, in:addition; Urge aS A ground for recovery that the teStimony on' the part of app'el l-lants fails .to - establish the. l keeping of- an effeetiVe,look-
• 1104 Mo. PAC. RD. CO . V. SANDERS. [193 out by 'the operatives of the train. Appellees also contend that had the train been operated with due care, the perilous position of the . automobile and its occupants could have been seen by appellants' operatives in time to avoid the collision. • The testimony of the engineer in charge of appellants' train No. '219 was to the effect that he was keeping a constant lookout ahead as the train approached the town of Higginson; that. he saw the automobile as• it reached highway No. 11 and ' turned east in the direction of the crossing. This testimony cannot arbitrarily be disregarded and must be accepted as true unlesS con tradicted by other evidence, either direct ot circumStanL tial. This rule is established by many of our cases, one of the latest being that of Missouri. P. Rd. Co. v. Trotter; 184 Ark. 790, 43 S. W. (2d) 762. We perceive , no evidence of a direct or cirCumstantial nature 'tending to dispute this testimony. When the engineer saw the 'automobile it was in a place of : safety traveling on the highway parallel to the railroad and when it turned to entet the crossing, if, as contended, the occupants could not see the train'when eighteen or twenty feet froth the rail road because of the depot, for thd same Teason the operatives of the train could not haVe seen the approach -Of the 'automobile at that time: • The fact appearS to be clear- that no lookoirt by the 'operative§ of the train would have disclosed to them the danger to the' car' and its occupants except .at a time when the car • wa's' so near the track, and in the act of entering upon it, that to avoid striking it .was not humanly possible, The proof -discloses that appellants' southbound train No: 219 was one of its •fast passenger:trains running on a fixed 'schedule, and while its rate of speed at the time of the accident was high, it was not unusual for trains of that character. Therefo' re, no negligence- is shown' -on the part of appellants as 'to this question: .In fact, the only question. from which a conclusion. of negli-gence-might be drawn is that the operatives' of the train did not continue to blow the whistle until the crossing was reached. There is some evidence, although against the
ARK.] 1105 great preponderance, of this neglect, but, if it be conceded that from the Rock Island crossing to highway No. 11 the whistle was not blown, still this was.not the proximate cause of the accident. The Rock Island. railroad crossing is" 520 feet north of highway No. 11 and it is undisputed that at that point the whistle was being bloWn at a time when . the train . was in plain view . of a person traveling on highway No. 67E and reaching the intersection of highway No. 11. The view of the tracks is obstructed at only one point and after -that point is passed the view of the tracks is again clear. Therefore, if •appellees' intestates had been taking-,the slightest precaution for their•own safety, the , collig on- would not have ocCurred. It is inescapable that: their:negligence was the proximate cause of the injury. This beingArue, it necessarily follows that ,under the doctrine of the cases . cited in Missouri Pacific-Rd. Co. v. Brewer, ante, p. 754, 102 S. W. (2d) 538, -there can be no recovery:and the trial court erred.in not Airecting a-verdict, at the request of the appellants. , :See, also, the -recent case. of Sinclair Refining Co. v.. Duff, , 191 Ark. 888, 88: S.: W. (2d)•322. • • Judgment reversed, arid cause dismissed. HUMPHREYS arid MEHAFFY,' JJ.; dissent: •
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.