| Ark. | Mar 4, 1905
(after stating the fact.) The instructions present no prejudicial errors. The court practically gave all the instructions requested by the appellant, covering every phase of its case which it desired submitted to the jury. There was abundant evidence of the negligent operation of the train to submit that question to the jury; and as it was done under proper instructions, it must be taken here that the company negligently failed •to keep a lookout, and give warning of its movements.
The case then hinges upon the question whether the uncontra-dicted testimony develops that the plaintiff was guilty of contributory negligence requiring the case to be withdrawn from the jury.
In St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134" date_filed="1901-03-09" court="Ark." case_name="St. Louis & San Francisco Railroad Co. v. Crabtree">69 Ark. 134, this court pointed out that the duty of a person about to cross the railroad track was not only to look and listen, but to continue on guard and continue to use his eyes and ears until the track and danger was passed.
The court submitted this question fully to the jury, instructing them to find against Johnson unless he fully met this requirement. The instructions requested by the appellant on that subject were given, and they did not lack fullness or emphasis. It is contended that on cross-examination Johnson modified his former statements as to looking and listening, but the change is more in expression than in reality. Even if the cross-examination weakened the force of his statements, still the whole matter was a question for the jury, and it has been resolved against the appellant on legally sufficient evidence.
The more serious question is Johnson’s failure to see the train. The requirement to be constantly on guard in crossing the track is not met by looking and failing to see what is plain to be seen. If this had occurred in broad daylight, it is clear that his failure to see what could have been seen by vigilance would have defeated him. His testimony shows it was night. Other testimony puts it in that uncertain light when more the outline than the substance of objects is discernible.
The leading case on this subject is Railroad Co. v. Houston, 95 U.S. 697" date_filed="1878-01-18" court="SCOTUS" case_name="Railroad Company v. Houston">95 U. S. 697. Mr. Justice Field, speaking for the Supreme Court of the United States, said: “Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others.”
It cannot be said here that Johnson could not have failed both to see and hear the train which was coming. It omitted lights and signals and warnings of its approach. Moving slowly, and another train nearby also moving would probably prevent the noise of its movements attracting attention. The forward car was a flat car with a water tank set back on it, and in the half light would not necessarily be seen to be moving, if seen at all. The fact, if a fact (and there was testimony to that effect) that there was a brakeman with a lantern well back on the car and about where the tank was, might tend in the dim light to deceive the eye as to whether it was a car.
These questions all went to the jury under instructions as favorable to appellant as it asked, and it cannot be said that the .verdict was without evidence to support it. A decision of the Eighth Circuit Court of Appeals, Chicago, R. I. & P. Ry. Co. v. Pounds, 82 Fed. Rep. 217, is relied upon as authority requiring the withdrawal of this case from the jury. The case does not support the contention. After stating the rules similar to the announcement of them in the Crabtree and Houston cases, the court said: “The application of these principles to the case at bar demonstrates, we think, that it should have been withdrawn from the jury, inasmuch as it was clearly shown, and not denied, that for more than 200 yards before the plaintiff reached the crossing he was in plain view of the approaching train, and could have seen it by making the slightest exertion.” It cannot be said under this evidence that the approaching train was in plain view, and a question of fact was presented which was properly submitted to the jury.
The judgment is affirmed.