64 Ark. 364 | Ark. | 1897
(after stating the facts.) 1. Appellant requested several instructions properly defining contributory negligence, and its effect upon appellee’s right to recover. It sought, in substance, to have the jury charged that if appellee failed to exercise that care which the law requires of one before going upon or crossing over a railway track where there are moving trains, and this negligence' contributed directly and proximately to his injury, he could not recover, unless appellant had knowledge of appellee’s perilous position in time to have avoided injuring him by the use of ordinary care, and failed to exercise such care. The court modified them so as to make appellant liable notwithstanding any contributory negligence of the appellee, provided appellant’s employees might have become aware of such negligence had they kept the proper lookout. The modification is in conflict with the rule announced in St. Louis, I. M. &. S. R. Co. v. Leathers, 62 Ark. 235, and Johnson v. Stewart, 62 id. 164. See also St. Louis S. W. Ry. Co. v. Lingman, 62 id. 245.
2. The court below was asked upon the pleadings and the proof to instruct the jury to return a verdict for the defendant, and it is insisted here that this should have been done. We have not set out the evidence on behalf of appellant tending to relieve it from the charge of negligence, because we would not disturb the finding of the jury as to that. We feel impelled to say, however, that the testimony of the appellee which shows negligence on the part of the company also shows negligence on his own part contributing directly to his injury. It is difficult, in principle, to differentiate this case from Martin v. Little Rock & F. S. R. Co., 62 Ark. 156, where we held that the trial court properly directed a verdict for the defendant upon the facts. The facts here are so nearly similar as to call for the application of the same rule. See, also, St. Louis, I. M. & S. R. Co. v. Martin, 61 Ark. 549; Railway Co. v. Ross, 56 Ark. 271; St. Louis S. W. Ry. Co. v. Dingman, 62 Ark. 245.
Because, forsooth, a railway company unnecessarily blocks a public crossing, causing delay and inconvenience to travelers, is no reason for exempting these travelers, when they attempt to cross elsewhere, from those duties of precaution which the law enjoins before going into these dangerous places. The appellee knew that cars were in motion upon these tracks before he undertook to cross them. He had noticed cars moving on the tracks north of him, and saw cars backing up towards him from the south. In order to avoid these on the passing track, he crossed' over to the main line, and followed down that thirty or forty yards, without even looking round to see if there were any cars coming from the north. Instead of walking in between these two tracks, a clear space of six feet, he walked down the main line until he was hit. There is no escaping the conclusion that a man of ordinary prudence, under the circumstances surrounding appellee, either would not have gone upon these tracks in the first instance, or, having done so, would have looked both up and down the tracks for appproaehing trains before walking a distance of thirty or forty yards directly upon one of the tracks. The conduct of appellee, viewed most favorably for him, is incompatible with that care which should be expected of prudent men generally under like circumstances. 3 Rapalje & Mack's Ry. Dig., § 198, and authorities cited. If it could be said that appellee, after going upon the tracks, amid the noise and confusion of passing trains, found himself suddenly bereft of the power to'exercise his senses for his protection, he could not be held any the less culpable for having voluntarily and unnecessarily placed himself in that situation. The only reasonable conclusion to be drawn from the evidence of appellee is that he was guilty of negligence which contributed directly to the injury of which he complains. We have not been furnished With a brief for appellee, but it does not appear from the instructions given at his request, nor from the proof, that he sought in the court below to hold the company responsible for willful negligence.
For the errors mentioned, the judgment is reversed, and the cause is dismissed.