GILLENWATER V. BALHWIN i ET AL., TRUSTEES 447 MO. PAC. Ito. CO. GILLENWATER, V. BALDWIN .ET AL., TRUSTEES ,• MO. PAC. , RD. Cp, • 4-4232 Opinion delivered. March 23,' 1936. RAtutoAns. Personal injuries' and : damages to . automobile of motorist sustained when the automobile struck a flat c'ar , standing. on the crossing,..with which he, was familiar,' .which he' approached on • a dark night at 25 miles . per . hour without slowing down or stopping, oblivious io the fact . that a train might be standing on •the ciossing is not the result of negligence of the railidad company, but of 'the negligent 'Manner in which the autoinobile Was driven, and barS recovery against tile . railroad company • for the damage sustained. . Ar . iljeal frotn Lee Cirenit Court; W. D: Davenpdrt, Judge; affirthed:'",' McKinleY '&' 'j aggers, Gu; , ii 'Durbin and Ward & Ward, for appellants. - Thomas P. ' , Pryor an0 Daett & ,Dafjgeti, for appelleeS. . • • HUMPHREYS, J. Appellant, Wallace Clillenwater, brought . suit against appellees in the, circuit court of Lee County to recover , damages to his automobile and himself., occasioned by a . collision between hiS automobile and pellees' freight train while the . train,was standing across the main , street of ,Marianna, a part ' of the train being.'on the . north, and a part . thereof . on tile south side Of. said street, cotmected by a flat ,cay . standing On the crosSing, -,..
448 GILLEN WATER V. BALDWIN ET AL., TRUSTEE g [192 Mo. PAC. ' RD. CO. pA. pelltine's automobile -was insured in the -General Exchange Insurance . Corporation, which paid for a part of the -necessary -repairs on the automobile after the collision,.and it became a party plaintiff inthe suit by virtue of ''a conventional subrogation agreement between said apPellants. It was 'alleged in the complaint that appellees' were guilty of negligence in blockading the street without maintaining a : signal, watchman or other lookout for the protection of approaching motorists or others, and that, on account of said negligence, he ran into the flat car as he approached -from the east in his" automobile in the exercise of ordinary care for his own safety, thereby injuring his car and himself to his damage in the sum of $2,725. The insurance company prayed for damages in the sum of $152.30. Appellees filed an answer, denying each and every material allegation in the complaint, and •by way of affirmative defense alleged that the collision, injuries and damages resulting therefrom were solely and proximately the result of the negligence of- appellant, Gillenwater, in driving 'his automobile inte the' train of appellees without Ordinary care . and precaution for bis own safety.' The cause •was submitted on the pleadings' and testimony of appellant, Wallace • Gillenwater, at the conclusion of which appellees requested an instructed' . verdict in its favor, which the court gave over the objection and exception of appellants. Judgment AN; as rendered in accordance with the instructed verdict for appellees, from which is this appeal. Wallace Gillenwater.testified that: about Midnight Oil Angust 1.9, 1934, upon a dark night, he approached the crossing, with which he was familiar, from the east np an incline, traveling in his automobile atabout twenty-five Miles anhourond did not see the flat car standing on the crossing until within A few feet of it, andtoo near thereto to materially slacken his speed; that he then 'attempted to check, his car and turn to the right bnt crashed into- the flat car ; that his lights' were on and bis brakes in fairly good condition, and that he was looking 0- the front, but failed to see the flat car beCanse his lights, 'owing to the
ARK.] GILLENWATER V. BALDWIN ET AL., TRUSTEES 449 • MO. PAC. RD. Co. incline, projected their rays above instead of on or against the flat car ; that no signal of any kind or watchman was there to warn him against the danger ; that he did not stop, look or listen as he approached the crossing, taking it for granted that the street was open 'and not blocked. In the recent case of Lowden,• et al., Trustees C. R. I. d P. Ry. Co. v: Quimby, ante p. 307, 90 S. W. (2d) 984, the facts of which are quite similar to the facts in the instant case, this 'court said: "He (apPellee) judged he had no cause to look and sought to jiistify his failure to observe the car on the crossing by the fact that the lights of the automobile, because of the declivity in the highway, did not light the highway ahead. This fact was an added reason why he should have looked, especially when the driver was approaching the crossing at thirty miles an hour with no precaution for their safety." And again, in further analysis of the facts, this court said: "If it be conceded that actionable negligence on the part of appellants has been shown, this does net relieve drivers of automobiles upon the highway of exercising some degree of care for their own safety. * * * We think it clear, judged by his own testimony, that appellee was guilty of negligence, and- that his injuries were not occasioned by the operation of the train, but by the negligent operation of the automobile while the box car . was standing on the crossing." In the instant case, there is no substantial evidence, even by reasenable inference, tending -65 show negligence on the part of appellee. The -x. 666M is 'silent as to the purpose for which the train stopped or how long it had been there when appellant, Gillenwater, ran into the flat car. For aught that appears, it may have just come to . a. 'standstill, and . time, sufficient may not have elapsed for the brakeman to hang- out a lantern or other signal or to place a watchman to warn the public who might be approaching. The record does not reflect that the train had stopped and ebstructed the street in violation of any ordinance or had been there for an unreasonable length of time without putting out a signal. Be that aS it may,
450 [192 the undisputed evidence is that appel]ant, Gillenwater, approached 'the crossing; with Which he was familiar, at the rate of tWenty-five miles an hour on 'a dark . night without slowing down, stopping; looking or : listening, 'oblivious to the fact that a : train might be standing on the crossing, and just taking it for granted that the'street yas clear. Io , other ,words, he drove into the flat car with his eyes wide opeo without exercising ,any degree of ,pare for ,his own . safety. There is no escape. from the ,conclusion that, his own negligence was the sole . aral pyoximate cause of ,his injolies and.damage, _No error , appearing, the ,• udgment is 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.