| Ark. | Jan 31, 1910
This is an appeal by the St. Louis, Iron Mountain & Southern Railway Company from a judgment rendered against it in the Hempstead Circuit Court in favor of J. H. Walker for injuries alleged to have been sustained by him while crossing defendant’s railroad track at a public street crossing in the city of Hope, Arkansas.
On the 28th day of October, 1908, the plaintiff, J. H. Walker, started to cross the defendant’s track at a public crossing at Laurel Street in the city of Hope, Arkansas, between 10 and 11 o’clock at night. He first looked for trains, and, not seeing any, started to cross the track. When he went upon the track at the Laurel Street crossing, both of his feet became entangled in some wire which had become fastened to a spike about six inches on the inside of the north rail of the track. He began to try to get loose and fell flat across the rail. While he was trying to get loose, he saw a train coming from the north. His right foot was not fastened as tightly as the left foot, and he got it loose first. The train was rapidly approaching. The plaintiff began hallooing and trying to flag the train by waving his hat. At the same time, he was surging backward and forward, trying to unloose his left foot from the wire. He finally succeeded, and he fell alongside the track with head to the north and one hand on the rail, just as the train rushed by. The engine passed over his hand and crushed it. When the train rushed by, he arose up and put his hat on. His hand began to sting, and he then saw that it had been crushed by the train. His hand was mangled so badly that amputation was considered necessary, and it was amputated just above the wrist.
The track at the place where the injury occurred was perfectly straight and nearly level up to the brick yard, which was about one-half mile distant, and which was also in the direction from which the train was approaching. The plaintiff first saw the headlight when it was between 500 and 700 yards away. The above is substantially the account of the occurrence given by the plaintiff. Other witnesses in his behalf said that the track was level and straight for some distance in the direction from which the train was approaching. That the train was about 50 minutes late, and was running unusually fast.
On behalf of the defendant, the engineer, testified that the engine was equipped with an electric headlight, and that he was keeping a lookout when he approached the Laurel Street crossing. That he blew his road crossing signal and the station signal. That he was making only twenty miles per hour, and was drifting when he passed the Laurel Street crossing, and that going at that rate, he could have stopped the train within 300 feet. That he could distinguish a man upright on the track 500 or 600 feet away; but that he could not see one lying down until within 100 feet. That when he first saw the plaintiff he was about 100 feet away. That he was on the side of the track and out of danger of the passing train. That he could not even then tell whether he was a man, some animal, or an inanimate object.
The chief contention of counsel for defendant is that the evidence does not support the verdict, and that there was no question of fact to be submitted to the jury. We are not of that opinion. The engineer admitted that he could see five hundred yards ahead of the engine, but says that he could not see an object on the track at that distance. He admits, however, that he could distinguish a man standing upright at 500 or 600 feet, and at the rate he was running he could have stopped his train at 300 feet. He claims that he did not see plaintiff until he was within 100 feet of him, and that he was then lying beside the track. Plaintiff testifies that he was surging backward and forward trying to extricate his foot, and at the same time was hallooing and trying to flag the train with his hat. His effort was accompanied with sufficient exertion to cause him to fall when his foot was loose from the wire, and he hit the ground just as the train rushed by. It is evident from his testimony that, while trying to get loose, his body was swaying back and forth over the rail. The engineer said that he was keeping a lookout, and could have distinguished a man in an upright position 500 or 600 feet distant, and could have stopped his train within 300 feet. While he said that he could not have seen a man lying down until within 100 feet of him, there was an intermediate point where he could have seen a man, in a partially upright position, who was violently surging back and forth over the rail and frantically waving his hat; and it was a question for the jury to say whether this point was a sufficient distance within which, under the facts and circumstances adduced in evidence, the engineer, had he been keeping a lookout, could have stopped the train or have checked its speed in time to have avoided the injury. The jury found that issue against the defendant, and its verdict is final.
Counsel for defendants also contend that the court erred in its instruction to the jury as to the measure of damages. They say, “the vice of this instruction is that it assumes facts, and is not hypothetical.” We do not think the instruction open to that objection. The most that can be said of it is that the form of it might have been couched in clearer terms; but,this defect could have been cured by a specific objection, and none was made. Appellate courts should not reverse cases for mere matters of form in instructions, which manifestly were not prejudicial, and which could have been corrected in the trial. court, had the court’s attention been directed to the matter, of which complaint is here made for the first time.
Counsel for .defendant also insist that certain of the instructions of the court in regard to the duty of defendant in keeping a lookout for travelers at public crossings should not have been given; but they only object to them because they say they are abstract. If we are correct in holding that there was evidence to support the verdict, our reasoning in that behalf is a sufficient answer to counsel’s objections, and need not be repeated here.
We have carefully examined both the testimony and the instructions of the court, and think the conflicting theories of the contending parties were fairly submitted to the' jury.
The judgment will therefore be affirmed.