Lead Opinion

Bunn, C. J.,

(after stating the facts). Does the evidence make out a case against the appellant company? At the time of the injury the appellee, Ding-man, was not at a crossing, but, according to his own statement, was walking along the track at a place where he had no right to be. He knew that it was about the hour for the passenger train of appellant to pass along the track at the place where he was walking, but he made no reasonable effort, by looking or listening, to inform himself of the approach of such train. These circumstances clearly show that he was guilty of negligence directly contributing to his own injury. Martin v. Railway Co., ante, p. 156; Railway Co. v. Cullen, 54 Ark. 431; Railway Co. v. Tippett, 56 Ark. 459.

As Dingman was struck while upon or near the track, and as he was not seen by the employees in charge of the train, there is sufficient evidence to support the finding that they were negligent in not keeping a proper lookout. The only question, therefore, is whether, under the act of April 8th, 1891, the appellant company is liable, notwithstanding the contributory negligence on- the part of appellee.

On this point the case is controlled by the case of St. Louis, I. M. & S. Ry Co. v. Leathers, ante. p. 235. Iu that case it was held that although the railway company may have been negligent in failing to keep a lookout, yet the plaintiff cannot recover if his own negligence directly contributed to the injury of which he complains. The ruling announced in that case we believe to be supported by reason and the decisions of this court.

Inability of railroads for failure to keep a lookout.

Por many years before the passage of the act of April 8th, 1891, the courts of this state followed and enforced a rule of law that required employees in charge of railroad trains to keep a lookout for stock upon the track, and also to keep a lookout at crossings to avoid injuring travelers along the public highway. L. R. & Ft. Smith Ry. v. Holland, 40 Ark. 336; Railway Co. v. Cullen, 54 Ark. 434.

Notwithstanding this rule required a lookout to be kept', and made the company liable for damages occasioned by a failure to keep such lookout, yet no one ever doubted that negligence on the part of the plaintiff, whose person or property was injured, directly contributing to the injury, would be a sufficient defense for a failure to keep such a lookout. The doctrine of contributory negligence was frequently applied, and the plaintiff denied a recovery for injuries occasioned by negligence of the company when he was also guilty of negligence contributing to his own injury. Railway Co. v. Cullen, 54 Ark. 434; Railway Co. v. Tippett, 56 Ark. 459; St. Lotus, I. M. & S. Ry. Co. v. Ross, 61 Ark. 617.

In ordinary cases of killing stock, the rule of contributory negligence rarely applies, for the reason that it is the custom of the country to allow stock to go at large upon “the range,” and when the railway track is not enclosed the owner is usually not guilty of negligence if his stock stray upon it. You cannot impute negligence to a horse or an ox; but if the owner of such an animal should carelessly drive it upon the track, or in any other way be guilty of negligence contributing to its injury, the rule would apply. This is shown by the case of Johnson v. Stewart, ante, p. 164, where the question is fully discussed.

This rule requiring the employees in charge of a train to keep a lookout for stock was changed by the decision in M. & L. R. R. Co. v. Kerr, 52 Ark. 162, where it was held that they were under-no duty to keep such lookout. Soon-afterwards the legislature passed the act in question, requiring employees in charge of railroad trains to keep a lookout both for persons and property upon the track. The rule that, with certain exceptions, prevents a recovery by one for an injury to which his own negligence has directly contributed has been long enforced by the courts of this state, and was well known to the legislature, and if it had intended to abolish this rule by the act in question, it seems reasonable to believe that some reference would have been made to it in the act. But the act makes no reference to it, and does not purport to abolish the rule of contributory negligence in such cases. It simply requires the employees in charge of trains to keep a lookout, and provides that the railroad company shall be liable for all damages resulting from the failure to keep such lookout. It does not say that the contributory negligence of the plaintiff shall be no defense in such cases, or that the company shall be liable for accidents which would not have happened but for the carelessness of the plaintiff acting as a proximate contributing cause. In such cases the injury is caused, not by the negligence of the defendant only, but by concurring negligence of both plaintiff and defendant. “The law has no scales to determine, in such cases, whose wrongdoing weighed most in the compound that occasioned the mischief,” and the plaintiff cannot recover. Railroad Co. v. Norton, 24 Pa. St. 469; Whittaker’s Smith, Neg. 377, note.

The decision in Memphis & L. R. Railway v. Kerr, 52 Ark. 162, called the attention of the legislature to the fact that the law did not require the employees in charge of trains to keep a lookout for persons or property upon the track, and the legislature, by the act of April 8, 1891, remedied this defect by requiring a lookout to be kept. The act made an important and beneficial change in the law, for, before the passage of this act, if stock, or children top young to know their danger, got upon the track at a place away from a town or public crossing of a railway, and were injured by trains, the company could not be held liable, unless it was shown that the employees in charge of the train saw the children or stock in time to have avoided the injury. But now the company is liable if, by proper care and watchfulness, it could have discovered and avoided the danger. And so in other cases the company would be liable, under this act, for damages occasioned by a failure to keep a lookout, but we see nothing in the act to justify us in holding that a plaintiff may recover for injuries occasioned by his own carelessness. An adult who sits or stands upon a railroad track, where he has no right to be, and carelessly allows a train to strike him, is in the same condition now as he would have been before the passage of the act. If the company is negligent, he also is negligent, and he cannot recover unless he can show that the employees in charge of the train, after discovering his danger, failed to use ordinary care in avoiding it. We conclude that the rule of contributory negligence was not affected by the act in question, and that, under the facts of this case, the plaintiff cannot recover, and that the learned judge erred in instructing the jury. The judgment is reversed, and the cause remanded.

Dissenting Opinion

Battle J.

dissents, for reasons stated in St. L. I. M. & S. Railway Co. v. Leathers, ante, p. 235.