| Ark. | Mar 30, 1908
W. A. Fain sued the Arkansas Central Railroad Company in the Logan Circuit Court for damages in the sum of $2,000 on account of injuries caused by a train of defendant knocking him off its track at a public street crossing in the town of Paris, in this State. The defendant denied that it was guilty of negligence, and pleaded the .contributory negligence of plaintiff.
The undisputed facts in the case are, in part, as follows: Plaintiff was deaf. Between two and three o’clock in the afternoon he approached the railroad track of the defendant at a place where a street in Paris crossed it. When he reached the track, he placed his foot on a tie or rail in the track, and stooped over as if in the act of tying his shoe. As he approached the track, he looked both ways, and saw no engine or train. While in the stooping position, he made no effort to keep a lookout, but remained in this position while an engine of defendant, moving at the rate from^six to twelve miles an hour, ran from 180 to 295 feet and struck him. He testified: “I know when I walked up the track I looked either way to see whether there was a train. There was no obstruction on the track. I did not see anything either way. There was no engine or train visible either way. I felt something on my leg, and I put my foot upon a tie to see what it was, and to take whatever it was off my leg. Then the next I knew there was a reflection of the engine as I stepped or turned eastward. The reflection of the engine came into my eye, and I just only had time to throw up my hands.” Had he looked as he should have done, he would have seen the engine of deT fendant in time to have avoided injury. He did not do so, in consequence of which he was injured. He was unquestionably guilty of contributory negligence. Yet the court submitted to the jury, in instructions given over objections of the defendant, the question as to whether plaintiff was guilty of contributory negligence. It should have instructed the jury that he was guilty of contributory negligence, and then as to the duty of the defendant after it discovered him upon or in close proximity to the track. Instructions upon what constituted contributory negligence tended .to mislead the jury, and the court erred in giving them.
The result of the trial was a judgment in favor of the plaintiff for $275. It is reversed, and the cause is remanded for a new trial.