*1 I Justice, simply concur to concurring. Hickman, Darrell legislation, law. The or rewrite the out that we cannot write point other There should be case, good judgment. in this my and firemen. Leader- policemen criteria considered in promoting through to determine hard qualities purely and character are ship grade best A person making I if can be. testing. they doubt of a senior officer. unable to act out duties may totally law, change going are not did not make we we But interested, least, policemen, not). I we do Those (at hope commissioners, this bring will have firemen and civil service law, will into the we are written legal about. Until other criteria to enforce the current law. v. Randall W. PACIFIC RAILROAD CO. MISSOURI BIDDLE, His Wife Cheryl BIDDLE and Ann 732 S.W.2d 86-299 of Arkansas Court Supreme July Opinion delivered [Supplemental Rehearing October Opinion 1987.*] *Glaze, concurs; J., J., deny rehearing. Hays, would *2 Sutton, M. and William H. Friday, Herschel H. William III, for appellant. Griffin Short,

Wilson, P.A., for appellee. Walker & at a collision involves a Justice. This case Hays, Steele Pacific Missouri a locomotive grade crossing between Randall truck driven and a Company, Railroad appellant, accident, and Biddle, in the injured Biddle was seriously appellee. *3 of his arms. and the use legs partial as lost the use of both a result Biddle the at 40% fixing negligence by a verdict jury The returned Pacific, Biddle one million awarding and and 60% Missouri by five hundred thousand dollars. Biddle awarded Cheryl reduced to loss of These sums were dollars for consortium. $600,000 $300,000 degrees in with the relative and accordance fault as the apportioned by at Pacific tracks cross

State 32 and the Missouri Highway for considerable right angles. The road is and level a straight east, from the crossing. Approaching distance on each side of the Biddle, the right, as did a motorist’s view of the track to Mr. north, is for 249 feet. that trees Beyond partially unobscured obscure view. the the jury

The was submitted to liability question with complied two issues—whether the railroad had essentially a or whistle it sounding the bell statutorily required the and the was an abnor- crossing crossing whether approached warnings. The railroad dangerous special one mally requiring two issues which made a motion for a directed verdict on these this was error. was denied and on it contends appeal is the easier of sounding The issue of the bell whistle to accordance with our statute jury the two. The instruction in a that a must sound a bell or whistle at distance provides train at with a public least a of a mile from an intersection quarter railroad highway. (Repl. 1979). Stat. Ann. 73-716 § bell contends evidence was that the whistle and undisputed sounded, engineer, such from the coming were testimony however, brakeman and a witness to the accident. The appellee whistle, testified did not he hear a bell or a and the witness accident testified he heard the whistle but could not at what say point began train it sound and his indicated it may begun not have until the crossing train was closer to the than the statute requires.

The statute requires only a whistle or bell sounded, but that one or the other must be sounded at beginning least a quarter mile from the Given crossing. the evidence presented, whether the train gave necessary over the signal required distance awas fact question left to the properly jury the court was in correct denying directed verdict on this point.

The law with respect cross dangerous abnormally ings was announced in Admx. & Fleming, v. Missouri Arkansas Co., Railroad and is (1939), incorporated AMI 1805:

If a grade railroad crossing frequently used traveling public, if trains over pass it if frequently, and the is so crossing dangerous because of surrounding circum- stances that a reasonably careful could not use it person with reasonable in the safety absence of special warnings, then an would be dangerous crossing. abnormally Whether the railroad grade in this case *4 abnormally dangerous is for to you decide.

If you find the crossing that was abnormally dangerous, as I term, have defined that then was the of the duty railroad to use care to ordinary give warning a reasonably sufficient to permit traveling public crossing to use the with reasonable safety.

Appellant argues the instruction and the case law interpret- ing it require that the plaintiff not prove that the intersection only was dangerous because of some hazard or physical visual obstruc- tion but also that the volume of both train and vehicular traffic is, render the intersection dangerous. That all three abnormally elements must be proved to submit the issue to the independently insufficient, jury. Appellant also proof contends appellees’ particularly with to respect daily volume of train traffic. Appellant urges two that trains a do not day constitute “fre- should not have instruction use and on that basis alone the

quent” given to been argued. for the reason but not argument,

We sustain test, of the one aspect that emphasize While we had cases Gray, 248 Ark. Rock Island & Railroad v. [Chicago, Pacific the test that cases applying we do not find (1967)], ends the element alone that the of one require insufficiency for a Rather, together all the factors must be considered inquiry. Ry. See, St. Louis Southwestern fair of the issue. determination Farrell, 757, 416 each require To (1967). S.W.2d in an unreasona a certain standard could result element meet determination, was highly for example, crossing ble where a high had of its characteristics and a dangerous because physical “abnormally not volume of vehicular traffic but would meet the through number of trains dangerous” passing test because the So, in each did meet some standard. predetermined day R.R., 42, 228 S.W.2d 642 Hawkins v. Missouri Pacific the circumstances we instruction where (1950), allowed the due to its crossing a condition at the established hazardous was made location on a of a No mention city. street principle crossing the number of trains daily. taken

This of the totality approach circumstances Co., Ry. v. St. Circuit in Louis-San Francisco Eighth Shibley case made (1976). appellant 533 F.2d 1057 The railroad that After review of our cases argument the same made here. a instruction, “the this the court found entire applying scope viewed, surrounding facts and circumstances each case must given any particu- undue should not be and that consideration lar element.” a state in this case occurred on two-lane accident over the passed that carried 963 cars Two trains

highway day. crossing, signals each There were no active at crossing day. crossing, warning but was a 500 feet from the sign there passive he Biddle testified sign and a crossbuck at the itself. crossing, approached slowed down about he mph *5 then clearing, he he looked to the north before reached first saw the south then north. At that time he again and crossing. from the length train and he was about a half car only times a using it two or three crossing, He was familiar with the train, week job. on his he why When asked didn’t see the he replied: all of

Because the trees bushes there. You can’t see up and the train until you gravel that little road there passed which right is on the of side the road. And after I that got to I still point didn’t see him I when was that approaching there, road and when I got to the track that when I remembered, I looked around and seen him.

We note first that the vehicular traffic of 963 cars per day and the train crossings per day two are below the averages significant found in other cases where the instruction was St. Jackson, Louis Southwestern approved. Ry. Farrell, cars,

416 S.W.2d 273 (1967), trains]; [1100-1900 cars, supra, More importantly, [1700-1900 trains]. crossing itself, which should receive the focus in this primary evidence, was not inquiry, shown by any significant to be a dangerous one.

While the that there was an undisputed obstructed line of vision until a 249 feet point from the tracks was reached, there was no evidence that this presented particularly dangerous situation. Neither was evidence there that there were other obstructions conditions sunglare such as mist to Jackson, Farrell, render the crossing dangerous. supra; supra. To the contrary, Biddle testified it awas clear and he spring day had no viewing south, trouble the tracks to the and only difficulty viewing the train to the north was obscuring the trees his view.

Appellees’ testified, model, expert based aon prediction the crossing would have an accident rate of one twelve and every one-half years, and that in crossing his opinion “more than ordinarily hazardous.” While he listed the factors consid- conclusions, ered in coming these such as the number of trains per tracks, the number day, of accidents at that history crossing, he did not give the specifics those factors for this particular crossing. gave He also no for his explanation classify- ing ordinarily “more than hazardous” or the relativity of that term.

In light the conclusory of the quality expert’s *6 in the record of other evidence testimony any and the lack we the of the find indicating aspects crossing, expert’s hazardous to to evidence significant in this case failed provide any opinion considering all When crossing’s dangerous quality. show the find there was test we cannot together, three factors the abnormally dangerous that this was substantial evidence an it, to that issue it was error submit crossing as we have defined and the position the It is this court has taken to also notable that jury. if in issue the point that the is not admissible opinion expert an Louis St. S.W. is not the of the In beyond comprehension Jackson, we Ry. Co. v. said: is single individually one of the facts taken foregoing

Not we nor can average juror; the the beyond comprehension an would not be say average juror find reason to that from facts when considered to determine the competent abnormally dangerous. whether the together is error to We have held that it consistently prejudicial conveniently admit on issues which could expert testimony could draw which jury they demonstrated the from v. S Co. their own See & S Construction conclusions. Stacks, 1096, 411 (1967). 241 Ark. Therefore S.W.2d in trial error we hold that the court committed reversible admitting danger the expert testimony abnormally on ous crossing. State, Russell

We in v. recently reaffirmed that view more we (1986). upheld While v. Trucking, B & Inc. Byers admission of in J expert testimony Robinson, (1984), there the 281 Ark. 665 S.W.2d made witness made which the could not have jury computations its own. failing to find argues also the trial court erred Appellant to or negligence greater a matter of law that Biddle’s equal than of the There is merit to this contention. that railroad. no jury is the long pass

We have held it province in, of, fact weight testimony. the conflicts and the upon seem is the verdict conflicting, may that no of the furnishes contrary testimony, preponderance submitted negligence, for reversal. ground Contributory properly Warren, Wasson jury to the determined verdict. jury, 148-A 719, 434 (1968). S.W.2d 51 It is not the of this province Court to of the compare negligence when fairminded parties men might reach differing conclusions. If there is any substantial *7 evidence to a support finding jury negligence that the of one by other, party greater than the we must affirm the judgment. 650, St. Louis S.W. v. Ry. Co. S.W.2d Pennington, (1977). In essence contends is appellant the evidence undis puted that Biddle had an opportunity to see the train before the collision and could not have failed to see the train in time to have Dennis, avoided the collision. Missouri R.R. Co. Pacific 28, 166 However, S.W.2d 886 (1942). the evidence on this point was neither clear nor The undisputed. jury could have found that Biddle had slowed down as he the crossing but approached train, the time he could first see the still did enough not have time to avoid the collision. The jury could have further found was the railroad’s failure to sound a at warning distance that required was the proximate cause of the accident. There was no error in the court’s refusal to find Biddle’s negligence equal greater than the railroad’s.

Reversed and remanded. J.,

Glaze, concurs. Supplemental Opinion Rehearing October — appellees — negligence

Railroads did not establish di- — appellant The rected VERDICT SHOULD HAVE BEEN GRANTED. had a statutory duty to sound a bell whistle, and in the absence of sounded, testimony offered by the that a appellees bell not gone matter jury; should to the the motion for directed verdict granted. should have been Hickman, Justice. A

Darrell rehearing granted because 148-B of July our decision the facts in regarding

we made a mistake 1987. a however, did not hear testified he

We said: “The appellee this: record reflects (Italics a . supplied.) or whistle. .” bell on that day? train whistle Q. Did ever hear you No (Italics supplied.) A. sir. *8 question not a bell. The never testified that he did hear

Appellee violating Ark. Stat. Ann. the was negligent whether railroad § The statute 1979) jury. was submitted to 73-716 (Repl. provides:

A bell of at least thirty ^[30] pounds weight, or a steam whistle, engine, or and on each locomotive shall be placed eighty at least at the distance of shall be or whistled rung ^[80] rods from the place where the said road shall cross street, until ringing whistling road or and be or kept other street, a penalty crossed said road under shall have to be every neglect, paid two hundred dollars for [$200.00] railroad, one-half owning the by corporation [Vi] to the the other half go thereof to to the informer and [Vi] for all shall also be liable corporation county; reason by any by which shall be sustained damages person neglect. such a bell whistle. In is to sound statutory duty that a bell offered appellees absence of any sounded, to the gone not have not matter should remaining issue with statute was the sole Compliance negligence, a case of liability. Since the did establish appellees the motion for directed verdict granted. should have been

Reversed and dismissed.

Glaze, J., concurs.

Hays, J., would deny.

TELCOE CREDIT v. Versa UNION EACKLES 87-93 Court of

Supreme Arkansas Opinion delivered July

[Rehearing denied September 1987.*] *9 J., *Purtle, grant rehearing. would