| Ark. | Feb 3, 1913
(after stating the facts). Viewing the evidence in the most favorable light for the appellant, the most that can be said of it is that it warranted a finding that he was a licensee on appellee’s right-of-way on the path that he was traveling when he attempted to cross at the time he received the injury of which he complains. As such licensee, the only affirmative duty the appellee owed him was to keep the lookout required by Act No. 284 of the Acts of 1911, page 275. The railway company did not owe him the duty to give the statutory signals required for the protection of travelers at public crossings on the highway. Nor did it owe him the duty of regulating its rate of speed so as to anticipate his presence upon its track at the time he was injured.
This case is unlike the cases where parties injured are upon the railway company’s track or right-of-way not only by permission but upon the implied invitation of the company. In such cases the railway company owes the duty of exercising ordinary care to avoid injury. See Ark. & La. Ry. Co. v. Graves, 96 Ark. 638" date_filed="1910-12-05" court="Ark." case_name="Arkansas & Louisiana Railway Co. v. Graves">96 Ark. 638, and cases cited. Nor is it like the cases of travelers at a public crossing, where the right to use the public highway is not by permission of the company, but by virtue of the law. Such are the cases of St. Louis, I. M. & S. Ry. Co. v. Chamberlain, 150 S.W. 157" date_filed="1912-10-07" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Chamberlain">150 S. W. 157, 105 Ark. 180; St. Louis, I. M. & S. Ry. Co. v. Carr, 94 Ark. 246" date_filed="1910-03-07" court="Ark." case_name="St. Louis & San Francisco Railroad v. Carr">94 Ark. 246; St. Louis, I. M. & S. Ry. Co. v. Garner, 90 Ark. 19" date_filed="1909-03-22" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Garner">90 Ark. 19; St. Louis & S. F. Rd. Co. v. Wyatt, 79 Ark. 241" date_filed="1906-06-04" court="Ark." case_name="St. Louis & San Francisco Railroad v. Wyatt">79 Ark. 241; and St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 227" date_filed="1905-07-01" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Hitt">76 Ark. 227. In all such cases the railway company owes to the traveler the duty of exercising care to avoid injuring him. But the present case is differentiated from the above by reason of the fact that the appellant here was not upon the track of the railway company at the time of the injury by reason of any invitation of tlie company, either expressed or implied. He was not about any business pertaining to the company, and, as already stated, he was a mere licensee.
A licensee takes his license with its concomitant perils. Ark. & La. Ry. Co. v. Sain, 90 Ark. 278" date_filed="1909-05-03" court="Ark." case_name="Arkansas & Louisiana Railway Co. v. Sain">90 Ark. 278; St. L., I. M. & S. Ry. Co. v. Tucka, 95 Ark. 190" date_filed="1910-05-23" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Tucka">95 Ark. 190.
Therefore, the allegations of negligence as to failure to give the warning signals and the unlawful rate of speed alleged in the complaint are not sustained by the evidence, and the only remaining question is, was the appellee negligent in failing to keep the lookout required by the act of 1911, supra.
There is no testimony tending to prove that the servants of appellee in charge of the train that injured appellant were not keeping the constant lookout required by the above statute. On the contrary, the undisputed evidence of the engineer who was running the train at the time shows that he was keeping the lookout, and that he discovered the appellant “one hundred feet ahead of the engine, walking between the main track and No. 1, the same direction the train was going, and walking in the same direction when he passed out of sight behind the front end of the engine.” The undisputed evidence therefore brings the case within the rule announced by this court in the case of St. Louis & San Francisco Ry. Co. v. Ferrell, 84 Ark. 275, where we said: “There is no evidence of failure to keep a lookout.”
The lookout that was being kept discovered the appellant, but at the time he was discovered he was in a place of safety, and therefore no duty devolved upon the appellee to do anything more than it was doing. It could not reasonably anticipate that appellant had not discovered the approach of the train, or that he would suddenly attempt to pass in front of the moving train, thus endangering his life.
We further said in St. L. & S. F. Ry. Co. v. Ferrell, supra: “If a lookout was being kept, the engineer and fireman would have seen a party of gentlemen running down the west track. They were in perfect safety, and it is evident from the testimony of Mr. Bell, that at the time when he crossed the main line, and at the time when Mr. Ferrell attempted to cross, it was so shortly before the passage of the train that nothing could have been done in the way of checking or stopping it. A careful watch, or a failure to watch, could not have influenced the result.”
So here, the disappearance of the appellant from the path where he was traveling and his going upon the track in front of the moving train was so sudden that it was impossible, under the undisputed evidence, for the servants of the appellee to have done anything that could have prevented the injury. The proof shows that the train could not have been stopped in less than about 350 feet.
The act of 1911, supra, places the burden of proof upon the railway company to show that the duty to keep the lookout had been performed. The undisputed evidence shows that appelle has performed that duty. Therefore, we are of the opinion that the court was correct in instructing the jury that “the evidence wholly fails to show any negligence whatever on the part of the defendant causing the injury complained of.”
Moreover, we are of the opinion that, even if it be conceded that the issue of the alleged negligence of the appellee was for the jury, still the uncontradicted evidence shows that appellant was guilty of contributory negligence. The train on the main line was due about the time he was injured; appellant was expecting it; he had looked and listened, and had neither seen, nor heard it; but the light from the other train blinded him so that he could not see the main line train, as he states. If the light from the other train, and the noise, by reason of the running thereof, were so great that he could neither see nor hear the main line train, then, by reason of these circumstances, it was all the more incumbent upon him not to go upon the main line track where he knew that about that time a train was due to arrive. He was in a perfect place of safety in the path where he was traveling, and had he remained in such path would have escaped injury. In such a situation it must be held that the injury caused by his suddenly leaving this path and placing himself in front of the moving train was the result of his own negligence. Martin v. Little Rock & Ft. S. Ry. Co., 62 Ark. 159.
If the circumstances, as appellant’s own testimony tends to show, were such as to render both his senses of sight and hearing unavailing for his protection, then the track where a train was at that time expected was a reminder of danger, and in his leaving his place of safety and going into this place of danger he assumed all the risk, and his own negligence in so doing was the proximate cause of the injury that befell him. See Martin v. Railway, supra. The judgment is affirmed.