959 BALDWIN V. BRIM. [192 BALDWIN V. BRIM. 4-4161
Opinion delivered February 17, 1936. 1. RAILROADS—LOOKOUT STATUTE—JURY QUEST1ON.—To make an issue for the jury under the lookout statute, plaintiff must establish that the injuries occurred by the operation of a train, and that, had such lookout been kept, the peril of the injured party
ARK.] BALDWIN V. BRIM. 953 could have, by exercise of ordinary care, been discovered in time to avoid ' the injury. 2. RAI LRO ADS — DISCOVERED P ERIL— EVIDENCE.—In an action for injuries inflicted by a train on plaintiff while lying asleep near the railroad track, evidence held . to sustain a finding that no proper lookout was being kept, and that the train operators could have, by exercise of ordinary care, discovered plaintiff's peril and avoided injuring him. 3. RAILMADs LOOKOUT STATUTE — INSTRUCTION.— An ' instructinn that it is the duty of perSons running trains to keep a cOnstant' lookout for persons upon or "alongside the tracks," held ciirrect: 4.- RAILROADSDISCOVERED PERIL.— Contributoi .y 'negligenee does not bar recovery for injuries sustained as a result of failure of train operators to keep a proper -lookout. 5. DAM AGES — PERMANENT INJURIEs. $2,000 damages to a boy for painful and permanent injuries held not 'excessive. Appeal from Clark Circuit Court; Dexter Bush; Judge; affirmed. R. E. Wiley and Henry Donham, for appellants. McMilla,n & McMillan, for appellee. • JOHNSON, C. J. • This action was instituted by. appel-lee, Monk Brim • As father and next . friend.of his son . , Elect BriM, against appellants, L. W. Baldwin and Guy A. Thompson, trustees for the Missouri Pacific 'Railroad Company, in the Clark Circuit Court to compensate a per-.sonal injury received by the son on September 21,.1934, at -Benton, 'Arkansas, by 1 . 1cl through the negligent operation of a train. The complaint in effect alleged that, while Elect Brim lay asleep near appellants railroad track at a place in full view of the operators of:their train, had 'a lookout been kept as required by § 6568 of Crawford. & Moses' Digest, the operators of said' 'train carelessly and negligently operated said train over and' upon its tracks without keeping the required lookout; and thereby ran said train over and upon said Elect Brim when by the exercise of ordinary care his .perilous position could have been discovered and avoided, thereby inflicting upon him very serious, personal injuries tO damage in the sum of $3,000. his An ansWer was filed by appellants denying the material allegations of the complaint, and affirmatively pleading contributory negligence of said Elect Brim in bar of any right .of recovery-.
254 BALDWIN V. BRIM. [192 Upon trial to a jury of the issues joined, a verdict was returned in favor of appellee and against appellants' for the . sum of $2,000, and from a . consequent judgment entered thereon this appeal comes. The first assignment of error • relates to the court's refusal to quash the jury panel as prayed by appellants, • but since this exact contention was presented to and decided by.us adversely to appellants' contention in Anieri-can Refrigerator Transit Co. v. Stroope, 191 Ark. 955, 88 S. -NAT (2d) 840, it is not deemed necessary to review the question here. . Appellants next urge that the court erred in refusing to direct a verdict in their behalf, and . this contention is grounded upon the alleged insufficiency of the testimony. This suit . is . predicated exclUsively upon a violation of § 6568 of Crawford & Moses' Digest, commonly known as the "Lookout Statute." To make an issuable case for the jury's consideration under the "Lookout Statute" it was necessary that appellee • establish by substantial testimony the following facts : first, that the injuries •Occurred by reason of the operation . 6f a- train; §econd, that the circumstances surrounding the -injuries were such as to reasonably lead to the conclusion that the injuries would not have occurred had a proper lookout been kept ; and,• third, had such lookout been kept, the peril of. the .injured party could have, by the exercise of ordinary care, been discovered in time to have avoided the injury. .Missouri Pac. Rd. Co. v. .Willicons; 180 Ark. 453, 21 S. W. (2d) 858 ; Huff v. Missouri Pac. Rd. Co., 170 Ark. 665, 280 S. W. 648; Blytheville, L. & A. S. R.'Co. v: Gessell, 158 Ark. 569, 250 S. W. 881; and Kelly v: De-Queen & E. R. Co., 174 Ark. 1000, 298 S. W. 347. - • A. That Elect Brim was injured by the oPeration of appellants' train is established by the uncontradicted testimony. • - • B. & C. Whether or not a proper lookout was kept by the trainmen operating the cars which produced the injury upon Elect Brim, and whether or not his perilous position could have been discovered, and bis injuries avoided by the exercise of ordinary care, the testimony is in sharp conflict. That on behalf of appellee, when
ARK . BALEiVVIN V. BRIM. 955 viewed in :the lightymost favorable 'to him as we are required to do, tended to . Show that he was lying down asleep near the oast rai.l •of its railroad tracks,. and that his position :there could . , have been discoVered, by the trainmen for a distance of approximately one-quarter mdle if a proper lookout.had been kept, and that the:train could have . been . stopped in less than 1;000. feet. It; was also . shown that the fireman, at the time of the injuxy., although the only ,one in . charge of the train who could have seen had he looked, ;Was engaged 'in other .matters,. and was making no effort • to keep a lookout as..required, by law. These facts and , circumstances are amply sufficient to support the jury 'S finding that no proper:lookout .was being kept by the operators of the train at the tithe of , the . injury,. and that they . could have,. by exercise of ordinary 'care, discovered . his peril and . avoided Jhe jury.. .True it is that appellants' testimony tended to show that a proper lookout was kept . and , that, because of certain physical barriers; the injured party's presence and peril could not by exercise of ordinary care have been discovered, and the injury, avoided,, but this .was the issue which was and should have been submitted to. the jnry. • The 'contentions Urged bY aPpellants haVe -been be: fore this coUrt many,' many times, and it WOuld serve no useful purpose to again reView and reiterate the established doctrine. See Missouri Pa:c. Rd. Co.' v.' 6i-clay, 188 Ark. 302, 65 S. W. (2d) 539, and cases there cited.. • Appellants next complain that : the 'court' erred in telling the jury by plaintiff 's.:requested instruction numT ber one that it is the duty of all personS'.running trains in this State 'upon any railroad track to keep a constant lookout. for persons upon or "along, side the tracks, .etc.' 7 The contention is that "along side the • tracks" is an addition to the:statute and places :a greater ' burden npon appellants than the statute requires. :This eXact contention was Presented, urged . and deCided: by us adversely to appellants' contention in Bush v. • Breteer, 136, Ark. 246, 207 S. W. 322, therefore it appears unnecessary .to review :the • cases cited on this- point: • •
256 BAL15WIN v.: BRIM: .R92 Complaint is alsO made Of the court's modifying and refusing- tO give to- the• jury in . charge certain requested instructions -which had the purpose and effect to acquit appellants of liability if the contributory' negligence of Elect • Brim was equal to or greater than the negligence of appellants ':servantS 'and emplOyees. This . eontention iS in the Very teeth of the statUte: It fiXes liability Upon the condition§ heretofore: stated, "notwithStanding the contribUtory negligence 'of persons. injured," and we have So expressly decidedin the cases cited, supra. But appellants urge that in other cases, (M. P,-.Rd.•CO. V. Trofter; 184' Ark. 790, 43 S. W. (2d) . 762; Cato v. St. L. 'Sim lig. Co., 190 Ark. 231, '79 S. 'W: (2d) 62 ; C. R. I. & P.Ry. CO. v. French, 181 Ark.. 277, 27'S. W. (2d) 1021 ; St: Ry. Co. v. McClinton, 178 . Ark'. :73, 9 S. W. .(2d) 1:060; St. L. S.. F. Ry. Co. . Kirkpatrick:1.55 'Ark. 632, 244 S. W. 35), we 'have impaired *the doctrine annOunced in the Oases first referred te; 'and that this impairinentis not only justified, but is iinpelled by § ' 6875 Of CraWfo'rd AlOse'' . Digest. Such iS'not the 'purpose or effect of said section. This section is'a, part of act 156 of 1919; and the second section thereof expressly provides that the act shall not repeal any statute now in force, enacted for the protection of persons or property against , damage done by railroads in this State, but. shall be . deemed and considered as additional protec-Oon to perSOns:darnaged by the running of trains in this §t àte.', Thi'S langnage negatives any impairment .ef the "LookOut StatUte." The Gessell and .Williams cases cited, • supra,. mere decided subsequent to the act Of 1919,- and we doubt not its due- consideration in.these cases: The McClinton and Cato cases cited and -relied upon by appellants - have • no .bearing upthi the issues here considered.because they arose under facts where no lookout, however efficient,- could . have discovered theperilous position Of the parties injured. All (Aker cases cited and relied-upon by . appellants may be clearly' distinguished in principle; The Trotter and French cases; supra, chiefly. relied upon by appellants are not in . conflict 'with the viewS here pressed. Each of theSe cases' were • bottomed .upon tWo
MIK.] 957 acts of negligence, namely: first, failure to observe the statute requiring the ringing of the bell, etc., See §; 8559, CraWford & Moses' Digest; second, failure to keep a lookout aS required by § . 8568. ,Under § 8559, Crawford & Moses' Digest, contributory negligence is not excluded as a defense, complete or partial, whereas under .§.8568 contributory •negligence is exclUded as a defense by its terms: So,.it definitely appears that both the French and Trotter 'cases are right in principle, but have no application or controlling . effect on the case under consideration bdcause this suit •rests exclusively upon § 8568. • • Finally, appellants contend that the verdict •and judgment for $2,000 is excessiVe. It is • unnecessary to 'review the . testitnony in thi g regard. It suffices .te say that the . boy. was very painfully, seriously, and probably permanently injured, and the jury's award does not. appear to be excessive. • No error aPpearing, the judgmeitis 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.