138 Ark. 589 | Ark. | 1919
(after stating the facts). The only question necessary to consider on the appeal is whether the court erred in giving a peremptory instruction to find for the defendant. The action of the court in directing a verdict for the defendant was upon the theory that'under the facts disclosed the plaintiff was guilty of contributory negligence as a matter of law. No inflexible rule can be laid down as to when or under what circumstances a traveler at a public railroad crossing will be free from contributory negligence in going over the crossing; but each case must necessarily depend upon its own particular facts. As a general rule a traveler on a street or highway approaching a railroad crossing is bound to exercise such care and prudence as an ordinary prudent man would exercise under the circumstances in looking and listening for approaching trains and stopping, if need be, before going on the crossing, and if he fails to do so, he is guilty of contributory negligence barring a recovery, although the railroad company itself is guilty of negligence. In the present case the plaintiff testified that he did look and listen for an approaching train before turning on the crossing, but that he did not see or hear one.
Counsel for the defendant claim that plaintiff’s testimony in this respect is not entitled to any probative force because the railroad track was straight for several miles north of the crossing and that he was bound to have seen the train had he looked for it. It will be remembered that the plaintiff drove northward on the street parallel with the railroad track and that he said there were some trees just outside of the right-of-way and some telegraph poles inside the right-of-way which obscured his vision to the north. In addition to this he listened for the statutory signals for the crossing to be given and did not hear them. It is true he did not look for the train when he got on the crossing; but the track to the north was straight and plaintiff had been looking in that direction for the train and listening for its approach or signals thereof as he drove up the street. When he did not see or hear the train as he drove on the crossing, the jury might have found that he was justified under the circumstances in thinking there was no train coming near enough to prevent his crossing in safety and that it would be best for his safety to devote his whole attention to driving his car over the crossing. He has only thirty-five yards to go and it will be remembered that the train struck the hind wheels of his automobile, thus showing that in another instant he would have been across.
Other witnesses testified that no warning of the approach of the train was given by blowing the whistle or ringing the bell for the public crossing as required by the statute.
The undisputed evidence shows that the train ivas going at a speed of fifty miles an hour when its schedule time was forty-two miles an hour. The fact that no warning of the approach of the train to the public crossing was given and that the train was moving at an unusually high rate of speed were essential elements for the consideration of the jury in determining whether the plaintiff was guilty of contributory negligence. St. Louis, Iron Mountain & Southern Ry. Co. v. Kimbrell, 111 Ark. 134, and St. Louis, Iron Mountain & Southern Ry. Co. v. Roddy, 110 Ark. 161.
It was also shown that the air was full of dust and smoke on the morning in question and that this, in a measure, formed a curtain which obstructed the view to the northward and thus prevented the plaintiff from seeing the 'approaching train until it got nearly upon him; at least the jury might have found this to be true. The plaintiff had a right to rely to some extent upon the statutory signals being given by the railroad company which would give him notice of the approach of the train. When all these facts and circumstances are considered, we think it was open to the jury to say whether or not the plaintiff was guilty of contributory negligence. See Arkansas Central Ry. Co. v. Williams, 99 Ark. 167, and Bush v. Brewer, 136 Ark. 246.
It follows that the court erred in directing a verdict for the defendant, and for that error the judgment must be reversed and the cause remanded for a new trial.
