| Ark. | Jan 30, 1911
(after stating the facts). 1. Counsel for appellant contend that the court erred in telling the jury that the burden of proof was upon appellant to show contributory negligence; but the decisions of this court are adverse to their contention. Aluminum Co. of N. A. v. Ramsey, 89 Ark. 522" date_filed="1909-03-01" court="Ark." case_name="Aluminum Co. of North America v. Ramsey">89 Ark. 522 and cases cited; St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187" date_filed="1906-12-31" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Sparks">81 Ark. 187.
2. Counsel for appellant also urge that the court erred in refusing certain instructions on the duty of appellee to look and listen while crossing the track of appellant. Other instructions given at the request of appellant fully covered this phase of the case, and it was not error to refuse to multiply instructions on ■the same point. Jones v. Nichols, 46 Ark. 209; Aluminum Co. of N. A. v. Ramsey, supra.
3. Counsel for appellant insist that the court erred in its instruction on contributory negligence. We do not deem it necessary to set out the instruction. It is copied from one given in the case of St. Louis, I. M. & S. Ry. Co. v. Fambro, 88 Ark. 16, and is substantially correct. If counsel for appellant had any objection to the verbiage, this defect should, according to the settled rules of the court, have been met by specific objection.
4. Counsel for appellant with much force urge that the verdict is without evidence to support it because the appellee was guilty of contributory negligence. While the question is close, we think that, when the testimony is considered in the light of all the attendant circumstances adduced in evidence, it can not be said that there is no substantial evidence to warrant the verdict.
The evidence for appellee shows that neither the whistle was sounded nor the bell rung for the crossing; and while the omission of the engineer to give these statutory signals did not relieve appellee of the duty of looking and listening for the approach of trains, yet they are warnings which he had a right to rely on in determining whether a train was drawing near. According to appellee’s own testimony, his view of an approaching train from the east was obstructed by box cars/- both on the south and middle tracks. In such case, while the traveler must not relax his endeavor to see approaching trains, yet necessarily he relies to a great degree upon his sense of hearing to discover the approach of a train, and in doing this he listens not only for the noise made by the running of the train but for the signals which the engineer is required to give by ringing the bell or sounding the whistle for the crossing. Appellee’s testimony tends to show that he was in possession of all his faculties and continually exercised them, during his passage over the crossing. The testimony adduced 'by him shows that the headlight was dim, and on that account its rays did not warn him. It is admitted that the steam had been shut off, and that the train was drifting or gliding in, and on this account the jury might have inferred that the train came in with little noise, and no smoke escaping to give warning of its approach; that it had rounded the curve before appellee came upon the crossing, and that for this reason he could not see it on account of the box cars obstructing his view. If he could not have seen it after it passed the curve, the jury might have found that it would have done no good for him to have stopped his wagon between the south and middle tracks to have tried to look between the box cars on those tracks.
It will be remembered, too, that the engineer and fireman, although they testify that they were keeping a lookout, did not see appellee or his team until just as they were struck. We think, under all the evidence, that the question of contributory negligence was one for the jury.
“It is too well established by the decisions of this court to need the citation of authority that a traveler along a highway, attempting to cross a railroad track, must look and listen for the approach of trains, otherwise he is guilty of contributory negligence, and can not recover damages on account of injury resulting therefrom. Unless, however, the undisputed evidence shows that the traveler did not look and listen, then it is a question of fact for the jury to determine, from all the facts and circumstances, whether the precautions which he exercised in that respect were sufficient to acquit him of any charge of negligence.” St. Louis, I. M. & S. Ry. Co. v. Garner, 90 Ark. 19" date_filed="1909-03-22" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Garner">90 Ark. 19; see also St. Louis, I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520" date_filed="1906-04-23" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Dillard">78 Ark. 520; St. Louis & S. F. Rd. Co. v. Wyatt, 79 Ark. 241" date_filed="1906-06-04" court="Ark." case_name="St. Louis & San Francisco Railroad v. Wyatt">79 Ark. 241; St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 227" date_filed="1905-07-01" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Hitt">76 Ark. 227.
5. Counsel for appellant contend that the court erred in admitting the testimony of Calvin Sellers. We do not think so. While the witness was not in a wagon at the time he made his observations, as was appellee while crossing the track, still the testimony of appellee shows that he could not see over the box cars when in the wagon on the south track. Sellers’ testimony only tended to show at what point the main track would come into the line of vision of a person crossing the south track. He fixed that point with an instrument, and then measured the distance to it from where he was standing on the south track when he fixed it. The calculations he made were such as might have been made by the jury. The point was, where could the main track be seen after the traveler had passed the point where his vision was not obstructed by the box cars? It made no difference whether Sellers was high or low; he was only testifying as to the point the main track could be first seen when the obstruction to the vision caused by the box cars had been passed. The jury were entitled to give it whatever weight it carried.
The judgment will be affirmed.