91 Ark. 14 | Ark. | 1909
(.after stating the facts.) The undisputed evidence shows that appellee knew when he was walking between the tracks that there was a train on the main line south of him. It was but a short distance away, and he could see it plainly. But, after first looking and seeing the train, he turned his attention to. the engine which was passing him on the side track, and did not look to see the movements of the train on the main line. He moved over so near to the main line track that a casual glance would have shown him that he was too near this track for the train that was south to pass him without striking him. In the middle of the track he would have been perfectly safe from the passing engines. He carelessly chose the place of danger. There was nothing in the surroundings to warrant any confusion of his senses. No emergency of peril that should have caused him to act on the sudden impulse. He had ample time for deliberation in his movements, and with any prudence whatever could have avoided the injury he received. It was a plain case of contributory negligence on liis part, which the court should have instructed upon the uncontroverted evidence. Griffie v. St. Louis, I. M. & S. Ry. Co., 80 Ark. 186; Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10; St. Louis, I. M. & S. Ry. Co. v. Johnson, 74 Ark. 372; St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134; Little Rock & F. S. Ry. Co. v. Blewitt, 65 Ark. 238; Martin v. Little Rock & F. S. Ry. Co., 62 Ark. 158; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549.
The proof shows that appellee did not look any more for the train on the main line after he first discovered its position, and that he walked on some fifty or one hundred yards between the tracks in the direction of this train. The passing of. the engine near him was no excuse for his failing to look for the other engine on the main line, nor for his placing himself so near the main line that he could not escape injury. He was apprised of the precise conditions, and his failure to use his eyes, under the circumstances, was inexcusable carelessness. See St. Louis & S. F. Rd. Co. v. Portis, 81 Ark. 325; St. Louis S. W. Ry. Co. v. Bryant, 81 Ark. 368; Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300; St. Louis & S. F. Rd. Co. v. Ferrell, 84 Ark. 270.
The court therefore erred in submitting to the jury the question as to whether appellee was guilty of contributory negligence, as it did in instruction number four. Ark. Central Rd. Co. v. Fain, 83 Ark. 532; El Dorado & Bastrop Rd. Co. v. Whatley, 88 Ark. 20. Under this instruction the jury might have found that appellant was negligent, and that appellee was not guilty of contributory negligence. Who can tell?
But, notwithstanding the contributory negligence of appellee, it was a question for the jury as to whether the employees of appellant, having discovered his peril, failed to exercise ordinary care to avoid injury to him. The jury might have found that the engineer and fireman saw appellee, and that they were aware from his movements that he was oblivious of the fact that the northbound train was approaching him; that they could have sounded the whistle or rung the bell or have lessened the speed of the train, in order to avoid striking appellee, and that they failed to exercise any of these precautions, and that his injury was caused by such failure. These questions were presented in the evidence and were correctly submitted. St. Louis S. W. Ry. Co. v. Thompson, 89 Ark. 496; Ark. Central Rd. Co. v. Fain, 85 Ark. 532; St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407; St. Louis, I. M. & S. Ry. Co. v. Hill, 74 Ark. 478; Griffie v. St. Louis, I. M. & S. Ry. Co., 80 Ark. 186.
For the error in giving the instruction indicated, the judgment is reversed, and the cause is remanded for a new trial.
