This case results from a railroad crossing accident. It occurred when a Missouri Pacific freight train and a tractor-trailer truck collided where the railroad tracks cross the “new Montieello by-pass” portion of State Highway No. 81 at a right angle. The driver of the tractor-trailer, Ben Edward Bussell, was killed, the truck was practically demolished and part of its cargo destroyed. The train engine, two freight cars and a portion of the railroad track were damaged. The appellant, Mrs. Helen Louise Bussell, widow of the deceased truck driver and administratrix of his estate, and the appellant, Burks Motor Freight Line, Inc., owner of the truck, brought suit against the appellees, Missouri Pacific Railroad Company and "W. B. Iveahey, the engineer of the train, for the recovery of damages. The appellees responded by a general denial and appellee Railroad Company by counterclaim sought to recover its property damages from appellant Burks only. Appellant Burks and appellee Railroad Company stipulated as to the amount of the actual property damages sustained by each of them.
Upon trial the jury denied any recovery to the appellants upon their joint complaint. It awarded $10,-828.59 to the appellee Railroad Company upon its counterclaim. Oil appeal the appellants do not question the sufficiency of the evidence nor assert any error in the presentation and reception of the evidence. The appellants rely for reversal upon alleged errors by the trial court in the giving of certain instructions on behalf of the appellees.
Appellants first contend that the court erred in giving appellees’ Instruction No. 7 which defined “unavoidable accident”. There is no contention that it is an incorrect statement of the law. The specific objection made is that there was no evidence presented in the case to justify giving such an instruction. Appellants argue the instruction was abstract and had the effect of misleading the jury. The jury was not misled inasmuch as it returned a verdict which, in effect, found the appellees were free from negligence and the appellants were guilty of 100% negligence. The giving of an erroneous instruction is harmless error where the jury was not misled or the jury rejects the theory of the instruction. National Life & Accident Ins. Co., v. Sherod,
“ * * * the verdict cancelled anj* error in the matter of the Comparative Negligence Instruction and rendered harmless the giving of the wrong Comparative Negligence Instruction ’ ’.
It cannot he said that the appellants were prejudiced by the court giving this instruction, if erroneous, since the verdict rendered it harmless.
The appellants next contend that it was error to give appellees’ requested Instruction No. 8. This instruction pertains to the duty of travelers approaching a known railroad crossing. The appellants specifically objected to this instruction as being a comment on the weight of the evidence and that it is incoherent, confusing, and misleading. A careful reading of this instruction convinces us that it is not susceptible to such objection. This instruction merely recites the duty of a motorist approaching a railroad crossing, as we have so often defined. St. Louis, I M & S R Co., v. Coleman,
The appellants argue that the words “position of peril” form an inappropriate term in Instruction No. 8. No such specific objection was made to the use of these words in Instruction No. 8. Furthermore, no objection whatsoever was made to the giving of appellees’ Instruction No. 18 which defined “position of peril”. We find no merit in any of appellants’ arguments attacking this instruction.
Appellants next urge that it was error to give appellees’ Instruction No. 9. This instruction, according' to appellants, ‘ ‘ attempts to state the general proposition that travelers approaching a railroad crossing may he assumed to act in response to the dictates of ordinary prudence and will stop before endangering themselves on the track in the path of the oncoming train”. The objections appellants made to this instruction were the same as to Instruction No. 8, i.e., it tended to comment on the evidence and was incoherent, confusing and misleading. We do not agree. Again the appellants do not specifically point out just how this instruction comments on the weight of the evidence or is misleading. The appellants do not specify how the instruction inaccurately defines the law in respect to the duty of a motorist. This instruction is a cogent statement of the permissible scope of the presumption trainmen can make in the operation of a train and is consistent with repeated declarations of this court. Blytheville, L & A S R Co., v. Gessell,
Appellants next contend that it was reversible error for the court to give appellees’ Instruction No. 12. This instruction advised the jury that the purpose of the statute which requires railroads to maintain signs at crossings is to provide a notice or warning to travelers using the highway that a railroad crossing exists and that if the warning boards at this crossing ‘ ‘ gave notice of the existence of the crossing to travelers at a time when they could avoid entering a position of peril by the exercise of due care”, then “a difference between the stautory specifications and the specifications to which these signs were built would not be evidence of negligence that was a proximate cause of this accident.” Appellants object on the basis that the instruction is an incorrect statement of the law in the instant case; that the evidence shows these signs did not perform the purpose of warning travelers of the existence of the crossing; and that this instruction ignores Ark. Stat. Ann. § 73-717 (Repl. 1957) relating to warning boards required at railroad crossings. It is undisputed that a crossarm sign existed at a distance of approximately thirty-nine feet from either side of this crossing. These signs were lettered “RAILROAD CROSSING-” in letters six inches high. However, the statute mentioned above provides the letters shall be at least nine inches high with the legend: RAILROAD CROSSING —LOOK OUT FOR THE CARS WHILE THE BELL RINGS OR THE WHISTLE SOUNDS.
It is well settled law that the violation of a safety statute is- evidence of negligence. However, it is required that such negligence be a proximate cause of the injuries before the rule is applicable in a particular case, Missouri Pacific R Co., v. Price,
Appellants also argue that this instruction is defective in that it is a comment upon the evidence, the word “travelers” is vague, the term “position of peril” is misleading. None of these objections were raised at the time of the trial and we cannot first'consider them here on appeal. Appellants further argue that the instruction fails to take into account other signs and lighting conditions in the vicinity of the crossing. No such objection was made. If the appellants considered they were entitled to an instruction relating to the effect, if any, other signs and lighting conditions along the highway and at the railroad crossing might have had upon motorists, or the deceased in particular, they should have offered such an instruction and they did not do so.
The appellants also contend that the giving of appellees’ Instruction No. 13 was reversible error. We do not agree. This instruction enunciated the burden of proof required of the appellants. The appellants specifically object on the basis that it is “repetitive and redundant” which “tends to give unnecessary and undue emphasis” upon appellants’ burden of proof and “tends to amount to a comment by the court upon the evidence required” of the appellants. We do not agree. This instruction, inter alia, advises the jury not to guess, speculate or surmise in arriving at their verdict. This is a proper limitation upon the jury. In the case at bar all of appellants’ instructions,' twenty-one in number, were given covering appellants’ theory of the case. The appellees offered twenty-one instructions and the court excluded four of them in giving the jury appellees’ theory of the case. It cannot be said that repetition in the giving of some instructions can always be avoided. It is consistent repetition with undue emphasis that should be avoided. Goodin v. Boyd-Sicard Coal Co.,
We next consider appellants’ objection to appellees’ Instruction No. 21 as modified and given by the court. This instruction pertains to a safety regulation promulgated by the Interstate Commerce Commission pursuant to its authority to make such regulations as provided in 49 U.S.C.A. § 304. Appellants’ main objection to this instruction is that the “violation of an ICC safety regulation cannot be evidence of negligence, since such regulation is, by its very nature, nonlegislative in character.” Appellants contend that the giving of this instruction was reversible error. We cannot agree. In the very recent case of Ratton v. Busby, supra, we recognized that a regulation promulgated by an appropriate agency of the federal government effectively establishes a standard of conduct, the violation of which would be evidence of negligence. It is well settled that the rules and regulations of the Interstate Commerce Commission have the force and effect of law as though prescribed in terms by the statute. Atchison, T. and S.F.R. Co., v. Scarlett,
Appellants further contend that the giving of appellees’ Instructions Nos. 15,19 and 20 was reversible error. Instruction No. 15 relates to the statutory duty of appellee Railroad Company concerning the blowing of its whistle or ringing its bell. Instruction No. 19 was a general observation on the duty of drivers of vehicles to exercise ordinary care for their safety and the safety of others. Instruction No. 20 related to the duty of the appellee Railroad Company to erect automatic warning devices at a grade crossing under abnormally dangerous circumstances. We have carefully examined appellants’ general and specific objections to these instructions, as well as the others discussed, and find them without merit.
It becomes unnecessary for us to consider the appellees’ contention that the evidence adduced in this case did not make a submissible issue for the jury inasmuch as we find no reversible error in the questioned instructions.
The judgment is affirmed.