104 Ark. 38 | Ark. | 1912
(after stating the facts). Under section 6773 of Kirby’s Digest, placing responsibility upon railroads where injury is done to persons or property by the running of trains, a prima facie case of negligence is made out against the company operating the train by proof of the injury. Kansas City So. Ry. Co. v. Davis, 83 Ark. 217.
The only remaining question is whether or not the plaintiff was guilty of contributory negligence. . The court directed a verdict for the defendant, and, in testing the correctness of its action in this respect, the evidence must be viewed in its most favorable light to the plaintiff. It is insisted by counsel for the defendant that the plaintiff did not look and listen for the train which injured his horse. In making this contention, they rely upon the answers to the following questions which were propounded to the plaintiff.
“Q. Did you stop to listen? A. No, sir. Q. How close were you to the track when you did look? A. Ten or twelve feet; the horses were almost ready to step on the track.”
When this extract from the plaintiff's testimony is considered with reference to his other testimony and to the other evidence introduced in the case, we do not think it susceptible of the meaning contended for by the defendant. He had already testified that, after he passed the store where he could have seen a train had it been there, there was no train in sight. He said that after that the depot obscured his view of the train so he could not have seen it. It appears from his testimony that he was in possession of all his faculties, and was listening for the trainmen to give the customary signals for the crossing, and did not hear any.
Again he says, he never went over a railroad without looking for a train, although he could not remember all the specific points at which he looked for the train on the morning in question. The depot was 100 or 130 yards distant from the crossing. The plaintiff says that the track was obscured from view beyond the depot. Now, this fact and the further fact that a strong wind was blowing from the opposite direction to that in which the train was going, and the fact that the wagon in going along made a certain amount of noise, were all matters for the jury to consider in determining whether or not the plaintiff used ordinary care, or was guilty of contributory negligence.
The testimony, when considered in its strongest light against the defendant, does not establish the fact that he did not look and listen, but goes to the extent of showing that he did not stop his wagon to look and listen. His failure to stop under the circumstances was not sufficient for the court to tell the jury that as a matter of law the plaintiff did not use ordinary care and was guilty of contributory negligence. It will be remembered that the evidence shows that the trainmen did not give the customary signal or warning that the train was approaching the crossing. The plaintiff had a right to assume that this duty would be performed and the customary signals given. His testimony shows that he was in possession of all his faculties, and was listening for the bell to be rung or the whistle to be blown for the crossing. This was not done. The jury might have believed, under all the facts and circumstances adduced in evidence, that, although the plaintiff should 'have exercised greater vigilance because the track beyond the depot was obscured from his view, and because a strong wind was blowing in the opposite direction to which the train was going, yet, if the statutory signals of warning for the crossing had been given, the plaintiff would have been as likely to hear them without stopping as otherwise; hence the question of contributory negligence was one for the jury, and the court erred in directing a verdict for the defendant. Railway Co. v. Amos, 54 Ark. 159; St. Louis, I. M. & S. Ry. Co. v. Stacks, 97 Ark. 405.
Because the court erred in directing a verdict for the defendant, the cause will be reversed and remanded for a new trial.
