ARK.] THE 'CHICAGO, R. I. & PAC. R y . CO. V. JAMES. 221 THE CHICAGO, ROCK ISLAND & 'PACIFIC RAILWAY COMPANY V. 'JAMES. 4-4141 Opinion delivered February 17, 1936. RAILROAD S—UNDERPASS-7 -CONTRIBUTORY NEALIGENCE.-A truck driver striking the pier of a railroad underpass held negligent as matter of law where there was ample clearance and the driver had only to notice where he was going and to exercise ordinary care to pass under the railroad in safety. Appeal from Logan Circuit Court, J. 0. Southern District ; Kincannon, Judge ; reversed. Action by Dewey James against the Chicago, Rock Island & Pacific Railway Company. From a. judgment for plaintiff defendant appeals. .
222 THE CHICAGO, B. I. & PAC. RY C0.1): 'JAMES. ' [ 192 A. S. Buzbee• and . Thos. • S. Ruzbee, for appellants. - Williams &,Williams : and Leff el• Gentry, for appellee. SMITH, J. The -instant' case- is not' unlike that of Chicago R. I. P. Ry. Co. v. Wooldridge, 187 Ark:197, 58 S. W. (2d) 937. indeed, the 'Sinailarity is sitch that . it is controlling . here. In this' case as in 'that, the plaintiff was. driVing, one -an automobile, the other' a fru& over State highway . No. 10, from Danville to BOoneville; in that ca ge . At about-6:00 or 6 :15' . 13 . M., in this case between 9 :00 and 9 :30 . 4,. M. The plaintiff in -each case came to the point where this highway is crossed by the track of the appellant railroad -company. The . former.opinion described the situation' fully, except that, since the injury in the forMer 'Case, the State HighWay Department has. relocated the -State highway . so that it 'approaches the-railread . track less obliquely.. The -highway no* rnns• under the railroad . tracks at A right angle, thereby reducing the danger of rnnning into any on0 'of the piers snpporting the railroad frack. • As stated in the former • opinion, there is .a forteen-panel pile treStle at this plaCe. In the' center of the underpass, Which is the • middle Of file road; there is one of these. panels or piers: It divide's' the highway into two lanes, the east side of which is used by westbound traffic, and the west side by eastbound 'traffic. The highway runs parallel . to the railroad . track on the sonth side until it run's' Under this track, After which it cOntinnes on the north side of the railroad . track. Danger signs on each side of the road give warning, of the underpass and narrow road, made narrow by the pier in its center, hut the. curvature of the roaditSelf gives warningto the traveller that 'the railroad, track is being approached, and the• outside piles . on each side of the middle pier were painted in colors with alternate stripes like a barber pole. The 'plaintiff admitted that he had . bought a pint of liquor and had taken a few' little drinks since leaving home that morning. Bnt he testified that he was not at all intoxicated. That feature of the . case is concluded by the verdict of the jury. • The plaintiff testified ;that his brakes'and lights were in good condition, and that he . was driving at a *speed not
ARK.] THE 'CHICAGO, R. I: .&!PAC.*RY.. CO. V. JAMES. 223: exceeding twenty-five miles Per . hour; . and that his car was under contrOl as he approached the -railroad-track. He admits that he saW the signs 'Warning of danger, and of the underpass, • but . he-did -not realize the danger of striking the center: pier 'in time ; to 'avoid doing . so: jammed on his brakes as He . but struck qUick,- and as hard as he 'could; . the pier before . he' Could . stop; damaging and-injuring himself: .• . his Car - • • • • The canse . Was' 'suhrnitted to' the Jury 'under instruc: tions dedaring the law td thk' the -railrOad 'coMpany was 'under the contirining chity of maintaining reasonably safe road erosSings, Whether theSe be 'surface . or - under or overhead crossings: Mit -Withont 'Considering:the question Whether the railrOadi company was negligent; it 'must be' said in thi's ca g e,. as • it . supra, was said' in 'the Wooldridge case; that the -plaintiff driver was' guilty of negligence directly contributing to' his injury. - The plaintiff here . . . had' • driiTen • thrbUgh thiS'underpass On two fOrnier ocdasiOns.' He kne-W he Was ing . approach- a. railroad. The 'o'n 'the toad, as ivell'-4s sighs, gave'a Warning Which the he did DA . heed: - The mi-diputed lestirnony is' td the effedt that there a space of twelve' feet in the 'clear betWeen the' Center bent or pier Of poleS, and the adjaeent oneS'on the'right and left 'sideS: There was ample clearance for a safe paSSage.. There waS ' grade. 'The roaeis . leVer , on both 'sides of the railroad track, and we' think it ninst he held' here the -Wooldridge case, as in supra, that the negligence of the driver was the proximate cause of the injury. • The case of Bush v.. Jeujc,iits, 128Ark. 630, 194 S. 704,. is cited as sustaining' the W. - judginent here appealed from. It was held in that ,case that a railroad company is under the duty to construct and maintain highway crossings, abOve and' belOw grade,' so 'AS Ubt unreasonablY to interfere with- the free use of..the . highWay the public. ' • by . That waS - nOt . done in' that 'Case. The fact.k there Stated are that : ".FiVe baleS'of cotton *ere On 'a Wagon', three on the bOttom acrosS fhe 'cotton frame, and:two lying lengthwise :on top .of the three ;bales." This •.-was such a load as -might be reasonably expected to have been
224 [192 MI any highway during the cotton ginning season. A highway ran under a railroad track. When the trestle over this rOad was built, there had been a clearance of twelve feet, but the railroad continued to put cinders on the road until the clearance had been reduced to eight and one-half • or nine feet. .The driver had never before driven a wagon loaded with cotton under 'the trestle. The opinion recites that, "as he approached the . trestle on the curve and rise, it appeared , to him that he could pass under the . trestle while sitting on the top.bale. When his mules had passed under the trestle, he discovered his dangerous situation, and • got down quickly on the front bottom bale and caught. the top bale with his right hand to keep from falling and by stooping, saved his head, but his right arm was caught between the top bale and trestle. and severely injured." Under these circumstances we declined to hold as a matter of law that the driver was guilty of negligence contributing to his injury. • Here a different situation exists. There was ample clearance with a wide margin for safe passage between • the piers or bents. Plaintiff had only to notice where he was going, and what he was doing, and to exercise only ordinary care in driving,. to pass under the railroad in safety, failure of which is negligence, and was the cause of his injury. . The judgment must. be :reversed, and, .as the case appears fo have been fully developed, it will.be dismissed.
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.