137 Ark. 6 | Ark. | 1918
(after stating the facts). The only assignment of error relied upon for a reversal of the judgment is that the evidence is not legally sufficient to warrant the verdict. The deficiency in this respect claimed by the counsel for the defendant is, that the testimony of the plaintiff was contrary to the physical facts and that the court should have directed the jury to have returned a verdict for the defendant. Under the settled rules of this court, we must uphold a verdict on appeal if there is any substantial evidence to support it. Where the facts are undisputed and by applying to them the well-known laws of nature or the physical facts, it is demonstrated beyond controversy that the verdict is based upon what is untrue and cannot be true, this court will declare as a matter of law that the testimony is not legally sufficient to warrant the verdict. St. L. S. W. Ry. Co. v. Britton, 107 Ark. 158, and St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, and cases cited.
In the case at bar it is claimed by counsel for the defendant that the conditions surrounding the plaintiff as testified to by himself and by the defendant’s witnesses show that the testimony of the plaintiff and his witnesses is contradicted by the physical facts. In making this contention we think counsel have invaded the province of the jury in deciding what testimony is true and what is untrue. Our statute requires that any railroad company operating a railroad over fifty miles in length shall be required to equip, maintain and use upon each and every locomotive being operated in this State in the night time, a headlight of power and brilliancy of 1,500 candle power. Acts of 1907, p. 1018. Section ¿595 of Kirby’s Digest also provides that a bell of a certain weight or a steam whistle shall be placed on each locomotive or engine and that the same shall be sounded at a certain distance before approaching a public railroad crossing. These requirements are provided by statute as a means for the protection of the life of the passengers and employees on the train, as well as persons on the track or those approaching the track at a crossing for the purpose of crossing it. It is a matter of common knowledge that no engine is constructed without these equipments being placed upon it. It is also very unusual for a train to be run in the night time without having its headlight lighted. This is a fact known to all reasonable minds by common observation. It is not probable when all the testimony in the case is considered that the defendant was guilty of the culpable continuing negligence of running its passenger trains without a headlight in the night time as testified to by the plaintiff and his witnesses. It is possible, however, for a train to be run without the headlight on the engine being lighted and whether the headlight was burning at the time of the accident does not contradict any law of nature or the physical facts in the case but depends upon whether or not the plaintiff and his witnesses were telling the truth. The plaintiff and his companion both testified that they were looking in the direction from which the train came and did not see or hear the train approaching. It may be that there was a defect in the machinery which cut off the current from the headlight and prevented it from burning at this time just as was testified to by the engineer of the railway company in Chicago, Rock Island & Pacific Ry. Co. v. Gunn, 112 Ark. 401. According to the testimony of the witnesses for the defendant, a headlight was burning, but this only created a conflict in the testimony which was settled by the. jury in favor of the plaintiff.
It was also shown by witnesses for the defendant that the lights were burning in the coaches as usual and that the window shades were up. This testimony, however, is not uncontradicted. The plaintiff and his companion testified that they looked in that direction for a train and did not see any lights at all or hear any train approaching. It may be that the train was lighted up as usual but that the passenger had pulled down the shades to the windows so that the lights were not discernible by the plaintiff and his companion. The jury might have found this to be the case from the testimony of the plaintiff and his companion to the effect that they did not see any lights although they were looking for a train. The plaintiff and his companion, also, testified that the whistle was not blown for the crossing and that the bell was not kept ringing as required by statute. Again they testified that the train coasted in without making any noise. Their testimony was not contradicted by the physical facts. Their testimony was of facts of a substantive character and related to matters, situations and conditions which might or might not have existed, but which depended wholly upon the truth or falsity of their testimony.
According to the testimony of the plaintiff, the train was running at the rate of twenty-five miles an hour and his automobile was approaching the crossing at the rate of three or four miles an hour when the engine struck it. Taking into account the speed of the engine and of the automobile, the absence of the statutory signals of sound or light, the character of the night and the surrounding conditions, the jury might have found, as it did find, the exercise of reasonable care by the plaintiff in looking and listening for the approach of trains. We are of the opinion that when all the circumstances are considered and the. testimony is viewed in the light most favorable to the plaintiff, that the jury was warranted in finding that he had relieved himself from the imputation of contributory negligence.
According to the testimony of the plaintiff himself, he practically stopped the automobile before going, or attempting to go, upon the railroad crossing. Some courts hold that it is the duty of a traveler approaching a railroad crossing to stop and look and listen for the approach of a train before proceeding over. We have not laid down the rule so strictly, but have uniformly held that a person who would pass over a railroad track at a crossing or elsewhere must do all that a man of ordinary care would do under similar circumstances to avoid any probable or possible danger from a passing train, and if need be, stop as well as look and listen. Whether such care requires stopping, as well as looking and listening depends upon whether, without it, the danger to be apprehended could be so well ascertained and averted. St. L., I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; La. & Arkansas Ry. Co. v. Ratcliffe, 88 Ark. 524; St. L., I. M. & S. Ry. Co. v. Prince, 101 Ark. 315, and cases cited, and St. L., I. M. & S. Ry. Co. v. Kimbrell, 117 Ark. 457.
It follows from the views we have expressed that the question of the negligence of the defendant and the contributory negligence of the plaintiff were jury questions. No objections are urged for a reversal of the judgment on account of alleged error of the court in submitting these questions to the jury.
We find no prejudicial error in the record and the judgment will be affirmed.
