St. Louis & San Francisco Railroad v. Carr
126 S.W. 850
Ark.
1910
Check Treatment
Fraurnthar, J.,

(after stating the facts). It is urged by counsel that the defendant had the right to use its track at the crossing, and that it only owed the duty to plaintiff not to injure him after having discovered his position of peril. But the rule relative to the liability of a railroad company for an injury done after a discovered peril is not applicable to the facts of this case, as adduced on the part of the plaintiff. For, according to the evidence of the plaintiff, he was a traveller in a public highway at the crossing of the defendant’s track, and in such case he was not a trespasser or licensee on defendant’s right-of-way, but he had the right to use the highway crossing. It is true that the railway company had also the right to the use of its track over the highway crossing. Where the railroad is situated upon a highway, the public has the right to use the highway as well as the railroad, and each must make reasonable and proper efforts, with due regard to the rights of the other and in view of all the circumstances, to foresee and avoid collision. And in such a case it is the duty of the railroad company to exercise ordinary care and prudence in the operation of its trains and otherwise to prevent injuring a traveller. The traveller should observe all the requirements of ordinary care; to him the track itself is a warning of danger, and he is under the duty to exercise precaution to inform himself of the proximity of the train and to exercise ordinary prudence in avoiding injury.

In the case of St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636, the railway company was operating its freight train along a street in the town of Warren, and while the .train was passing Neeley in the street a car door fell from its place in the car and injured him. In that case it was held that “the railroad company owed him the duty to employ reasonable care to avoid injuring him.” In St. Louis S. W. Ry. Co. v. Underwood, 74 Ark. 610, a pedestrian along a street was injured by a railroad, and in that case the court said: “This doctrine rules the case at bar, rather than the principle invoked by appellant that the railway company owed appellee no duty except to use ordinary care not to injure him after having discovered his place of peril.” 3 Elliott on Railroads, § 1153; 33 Cyc. 1145.

And when at a public crossing a traveller in the highway is injured by a door or other object projecting from -the car during! the running and operation of the train, a prima facie case ol negligence on the part of the railroad company is made oujc under section 6773 of Kirby’s Digest. St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636; Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548; St. Louis, I. M. & S. Ry. Co. v. Briggs, 87 Ark. 581.

A railroad company is bound to use ordinary care and caution to avoid injuring persons who may be near its tracks, and who are rightfully at such place; and whether or not under all the circumstances of the case the railroad company was negligent in permitting any object or article which caused the injury to project or fall from its train of cars is a question of fact for the jury to determine. Kansas Pac. Ry. Co. v. Ward, 4 Col. 30; Shearman & Redfield on Negligence (3 ed.), 477; 33 Cyc. 900.

The railroad company should exercise ordinary care and diligence in inspecting its cars, trains and appliances in order to discover such defects and to remedy and repair same. And it should not only use such care at its stations or stopping points along its line, but such care should be exercised at all reasonable times along its route to discover such defects.

But, although the railroad company may 'have been guilty in this case of negligence which caused the injury, still this did not absolve the plaintiff from the duty to exercise due and ordinary care to avoid the injury. For, if he was guilty of any negligence which contributed to the injury sustained by him, hé cannot recover. This contributory negligence of the plaintiff would consist in some act or omission on his part amounting to a want of ordinary care. In Hot Springs St. Rd. Co. v. Hildreth, 72 Ark. 573, it is held that ordinary care is such as a man of reasonable prudence and caution would exercise under the circumstances; and “culpable negligence” is defined to be the “omission to do something which a reasonable, prudent and honest man would do, or the doing something which such a man would not do under all the circumstances surrounding each particular case.” Hot Springs Rd. Co. v. Newman, 36 Ark. 607.

Where a danger is probable or obvious, it is the duty of a person to exercise ordinary care to avoid the injury, even though the other party was negligent. And this duty to avoid the consequences of another’s negligence arises whenever the circumstances are such that an ordinarily prudent person would apprehend their existence. The law requires the exercise of ordinary care to observe danger and avoid it.

As is said in the case of Southwestern Tel. & Tel. Co. v. Beatty, 63 Ark. 65: “The fact that a street is a highway, and the appellee had the right to be in it, did not relieve him of the duty to exercise care to avoid the danger. If he was guilty of conduct which a reasonable and prudent man would not have adopted under the circumstances, and this conduct contributed directly to his injury, he was not entitled to recover.” While a traveller at a public crossing over a railroad track may to a limited extent rely upon the railroad company to observe the requirements of ordinary care, nevertheless it is his duty, in approaching the crossing or in going on it, to exercise ordinary care, not only to learn of the approach of trains, but also to keep out of the way of probable danger, that is, he must use such care and prudence as would be exercised by a man of ordinary care and prudence under like circumstances. He cannot, by relying on the railroad company to exercise ordinary care, blindly run into a train or place himself negligently in such close proximity to the train as to be injured. What will constitute contributory negligence on the part of the person injured must depend upon the circumstances of each case. If from those circumstances reasonable men might differ as to whether the person did or did not exercise ordinary care, the question must be left to the jury for its determination. The jury must then decide for themselves whether the person did any act which he should not have done or omitted to do an act which in the exercise of ordinary care he should have done under the circumstances of the case. The exercise of ordinary care might in the estimation of the jury require the person to look for any danger, even should it proceed from some negligent act of the defendant. The jury should be permitted to be the .exclusive judges of what would be the exercise of ordinary care on the part of the plaintiff under all the circumstances of the case.

But by the above instruction number 7 given on the part of the plaintiff the court told the jury that, in order to exercise ordinary care, the plaintiff was not required to anticipate negligence on the part of the defendant; in effect, it said-that the plaintiff, in regulating his conduct and acts under the circumstances of the case, might rely on the assumption that the defendant would not be negligent; and therefore ne*ed not use that care -which the jury might have thought that an ordinarily prudent and careful person should have used under the circumstances of the case.

By this instruction the jury might have thought that the plaintiff was not required to exercise that care and prudence which the-jury would have considered ought to have been exercised by a man of ordinary care under the circumstances of this case. For, if the plaintiff had an absolute right to conform his acts to any course of conduct because he did not anticipate negligence on the part of defendant, then the jury may have thought, from this instruction, that the plaintiff was excused from some act of negligence on his' part because he had the right to assume that defendant would not be negligent. But the law is to the contrary; and, although the defendant was negligent, still the plaintiff himself must not have been guilty of any act of negligence which contributed to the injury, before he can recover. It was, under the evidence, a close question of fact as to whether or not the plaintiff was guilty of negligence in going as close to the moving train as he did; and the determination of that question of fact should have been left to'the jury without any qualification as to t’he care which the plaintiff should have exercised for his safety. By this instruction we think the court invaded the province of the jury, and therefore committed error, and that the error was prejudicial.

We have examined the other instructions that were given and refused in the case, and we do not find any'prejudicial error in the rulings of the court thereon. There are other complaints made by appellant, but, if any of them amount to error, we do not think they will occur on a second trial. Under proper instructions we are of opinion that there was sufficient evidence to sustain the verdict of the jury.

For the error in giving the instruction number 7 on behalf of plaintiff the judgment is reversed, and the cause remanded for a new trial.