88 Ark. 524 | Ark. | 1908
(after stating the facts.) The point to which appellant chiefly directs his argument is that the evidence was insufficient to be submitted to the jury. It is insisted that failure to keep a lookout as required by the statute, or failure to give the statutory signals, does not excuse contributory negligence. This is undoubtedly correct. It is also insisted that it is negligence per se for'an adult to go upon a railroad track and attempt to cross the same immediately in front of a moving train, with full knowledge of the surroundings, and without being impelled to do so to avoid danger; and this is undoubtedly correct. But the plaintiff's evidence shows that at the time Mr. Ratcliffe started to go upon the track the train was moving away from him, and did not start back until he was too near the track to attempt to back away from it. At least, the appearance at the time led him to believe that backing away was impossible. As said in St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 227: “The care is to be measured by the act of going into' this danger, not when it is too imminent for avoidance, and when excitement and danger dethrone judgment.”
It is also insisted that any negligence on the part of a railroad company which precedes and is contemporaneous with contributory negligence of the party injured does not excuse contributory negligence, and this is unquestionably true; and it is also true that if the party injured is guilty of contributory negligence there is no liability upon the railroad company unless its employees failed to use the proper care to avoid injury after discovering his danger. All of these principles are thoroughly established, and the authorities to support them may be found in appellant's brief. Whether such cases as the one developed in the evidence here, a summary of which- may be found in the statement, should go to the jury, has been thoroughly and repeatedly and recently considered by' this court; and every principle -involved here has been settled in favor of sending such cases to the jury, in St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 227; Scott v. St. Louis, I. M. & S. Ry. Co., 79 Ark. 137; St. Louis & S. F. Rd. Co. v. Wyatt, 79 Ark. 241; St. Louis, I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520; and Choctaw, O. & G. Rd. Co. v. Baskins, 78 Ark. 355, and others.
It would be idle to rediscuss the principles involved. It was the duty of the trial court to have sent the case to >the jury under proper instructions; and the question remains whether the jury was properly instructed.
The first instruction is objected to on the ground that to declare it -to be the duty of the railroad company to exercise care' to observe travelers about to cross the railroad upon the highway, and that a failure to exercise such care in watching for travelers about to cross the railroad would render the defendant guilty of negligence, is to overturn the long and well-established doctrine of this court that it is the duty of travelers to be on the lookout and to look and listen, and shifts this duty of keeping a lookout from the travelers to the railway company. This argument, however, confuses the negligence of the railroad company with the contributory negligence of the traveler. It is made by statute the duty of a railroad company to keep a lookout; and especially is this duty incumbent upon it at public crossings; and it is guilty of negligence when it fails to do so. On the other hand, the traveler has the corresponding duty resting upon him to look and listen; and if he fails to perform this duty, he is guilty of contributory negligence.
This instruction was correct, and other instructions which presented the duty of the traveler were given, and properly so, for it was necessary for the jury to pass upon both questions. “It is generally impossible to state all the law of the case in one instruction; and if the various instructions separately present every phase of it as a harmonious whole, there is no error in each instruction failing to carry qualifications which are explained in others.” St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61.
The next objection is to 'instruction number three. This instruction is in conformity to the principles announced in St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 227 and Scott v. St. Louis, I. M. & S. Ry. Co., 79 Ark. 137.
The next objection is to instruction number six. It is said that this instruction is misleading. But it is not pointed out wherein it is misleading, and the instruction is in almost exactly the language of the court in Hot Springs Street Rd. Co. v. Hildreth, 72 Ark. 572.
The next objection is to number seven. It is not objected that the instruction itself is erroneous, but that there is no evidence to which it is applicable except this, as stated by appellant’s counsel: “A little bridge across a ditch in the roadway and which, by plaintiff’s own testimony, -is shown to have frightened his mules and caused them to step upon the track, when, but for the bridge and his mules becoming frightened thereat, he might, ‘by the skin of his teeth,’ have passed over in safety.” This was sufficient evidence of a concurrent cause, combined with the negligence of the defendant, to submit the question to the jury.
The next objection is to the inserting of .the word “obvious” before “danger” in the fourth instruction given at instance of the defendant. The authorities use this adjective in discussing the character of the danger which charges a party with contributory negligence when he voluntarily encounters it. Probably it is not necessary to so qualify it where the test is made as to whether the danger is such that an ordinarily prudent man would not meet it ; but this is the accepted term in discussing the question, and it can not be error to insert it.
The next objection is to the insertion of the word “negligently” before “attempted to cross said track,” in the fifth instruction given at the request of the defendant. This was a proper qualification, because he may have attempted to cross in a manner which was not negligent; and if he looked and listened, and the appearance ,of the danger was not such that a reasonably prudent person would regard it as imminent, then there would be no negligence in his attempting to do so; or, rather, it would be a question for the jury to say whether it was negligence to do so. This instruction stated the duty resting upon the traveler more favorably ,to the appellant than the law requires. There is no imperative duty resting upon him to stop and look and listen. The duty is to look and listen. If this can not be properly discharged without stopping, .then he must stop. If it can be, then there is no necessity of stopping. St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549.
These are all the objections raised to the instructions, and the court fails to find any error in the instructions. The testimony is sufficient to sustain the verdict. The case has been properly tried, and the judgment is affirmed.
