{
  "id": 1373959,
  "name": "Missouri Pacific Railroad Company v. Robertson",
  "name_abbreviation": "Missouri Pacific Railroad v. Robertson",
  "decision_date": "1925-11-30",
  "docket_number": "",
  "first_page": "957",
  "last_page": "962",
  "citations": [
    {
      "type": "official",
      "cite": "169 Ark. 957"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "151 Ark. 34",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1366097
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/151/0034-01"
      ]
    },
    {
      "cite": "155 Ark. 632",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1360527
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/155/0632-01"
      ]
    },
    {
      "cite": "168 Ark. 157",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8719838
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/168/0157-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 485,
    "char_count": 12550,
    "ocr_confidence": 0.501,
    "pagerank": {
      "raw": 1.268273334546052e-07,
      "percentile": 0.6140844504834065
    },
    "sha256": "7247c8ee09f0932e555a838beb007ccccb6b62611d05c088cbde7ef87b818524",
    "simhash": "1:60fd399325398f75",
    "word_count": 2091
  },
  "last_updated": "2023-07-14T23:00:38.667503+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Missouri Pacific Railroad Company v. Robertson."
    ],
    "opinions": [
      {
        "text": "Wood, J.\nThis is an action by the appellee against the appellant to recover damages for persona! injuries growing out of the alleged negligence of the servants of appellant in the operation of its train. The appellee alleged that, while he was driving1 a truck over the track of appellant on a public crossing, appellee and his truck were struck through the negligence of the servants of appellant, operating its train, in failing to give the statutory signals, and in failing to keep a lookout, and in running said train at an excessive rate of speed.\nThe appellant, in its answer, denied the material allegations of the complaint and set up the affirmative defense of contributory negligence on the part of the appellee. The verdict and judgment were in favor of the appellee, and the appellant duly prosecutes this appeal. We will dispose of the appellant\u2019s contentions in the order presented in brief of its counsel.\nAppellant contends that the court erred in refusing its prayer for instruction No. 1, as follows: \u201cYou are instructed to return a verdict for the defendant.\u201d Learned counsel for appellant argue, first, that the undisputed testimony shows that the appellant\u2019s servants, in operating its train, were not negligent; and,,'second, if counsel be mistaken in this, that the undisputed testimony shows that the appellee was guilty of contributory negligence, and that his contributory negligence was much greater than any negligence of appellant\u2019s servants, and that in either event the appellant is not liable. There was testimony on behalf of the appellee tending to prove that, while the appellee was traveling on the highway approaching\u2019 the crossing, -and about the time appellee reached the point where he would turn south on the highway, and where he could see as far as 400 feet to tbe north, the direction from which the train was coming that injured him, he looked both to the north and the south, and did not see or hear the train. From the time he made the turn he was traveling south toward the crossing with his back in the direction from which the train was coming that struck him at the crossing. The train that struck the appellee was due at the station at 8:30, but it was shown by one of the witnesses for the appellee that the train was an hour late. Appellee\u2019s testimony tended to show that about the time he usually arrived at Laf e in the morning, a train from the south \u2014 from Paragould\u2014 also arrived, and the appellee was expecting that train, and giving more attention to that direction. It was a cold, cloudy day, and appellee had the curtains up on his truck. Witnesses testified to the effect that they did not hear the bell ring or the whistle sound. Under the above testimony the issues of negligence, contributory and comparative negligence were for the jury.\nThe appellant next contends that the court erred in submitting to the jury the question as to whether or not the appellant\u2019s fireman failed to keep a lookout. The fireman testified that he was keeping a lookout, and that he saw the appellee as soon as he came out from behind the obstructions. It would.unduly extend this opinion and could serve no useful purpose to set out and discuss in detail the testimony of the fireman to determine whether or not the court erred in submitting the question of a failure to keep a lookout to the jury. We have examined the testimony, and have concluded that the court did not err in submitting this issue. In other words, it was for the jury to say whether or not the testimony of the fireman, to the effect that he kept a lookout, was reasonable, self-consistent, and uncontradicted. The court\u2019s instructions on this issue were correct.\nCounsel for appellant next contend that the court erred in refusing to give its prayer for instruction No. 5 as follows: \u201cYou are instructed that, if you find from the evidence that the defendant\u2019s employees failed to whistle for the crossing, but did whistle for the station, and that such station whistle was a long blast, and nearer the station than would have been the crossing* whistle, failure to give the crossing whistle under such circumsi anees would not be the proximate cause of the accident. \u2019 \u2019 The appellant concedes that there was testimony sufficient to warrant the court in submitting to the jury the issue as to whether or hot the statutory signals were given as required by \u00a7 8568 of C. & M. Digest. That statute requires the bell to be rung or whistle to' be sounded at a distance of eighty rods from the railroad crossing, and to be kept ringing or whistling until the train shall have cross\u00e9d the said road or street.\nIt is manifest, even though the-whistle for the station would be tantamount likewise to sounding the whistle for the crossing, nevertheless one long blast sounded for the station or for the crossing would not be a compliance with the statute, for the statute requires that the signal be given at a distance of at least eighty rods, and that the same be kept up until the crossing is passed. The failure to give the statutory signals is evidence of negligence, and where the testimony shows that such signals were not given, it is for the jury to say, under the evidence, whether the negligence in failing to give such signals was the proximate cause of the injury. See Mo. Pac. Ry. Co. v. Bode, 168 Ark. 157. Therefore,' the appellant\u2019s prayer for instruction No. 5 was argumentative, and the court did not err in refusing to grant the same.\nThe appellant urges, reversal on the ground that the court erred in giving appellee\u2019s prayer for instruction No. 6 to the effect that, if it appeared to the appellee before crossing, as a reasonably prudent person under the surrounding circumstances, that greater danger was to be apprehended from one end of the track than the other, appellee might give more attention to that end of the track from which he apprehended the greater danger. The court had granted appellee\u2019s prayer for instruction No. 5, which in effect told the jury that the appellee would not be guilty of contributory negligence unless \u201che failed to look both ways, and to listen for approaching trains, or to use ordinary care to avoid injury, such as stopping, if necessary, that he might better look and listen.\u2019! \u00cdWhen the.two instructions are considered together, it is clear that there is no reversible error- in giving ^appellee\u2019s prayer for instruction No. 6.\n-It is argued- that the court erred in granting appellee\u2019s prayer for instruction No. 8 as' follows: \u201cIf you find that the plaintiff was guilty of contributory negligence, you will, if you find for the plaintiff, diminish the amount of the verdict in proportion to such contributory negligence. \u2019 \u2019 This instruction did not correctly set forth the doctrine of comparative negligence as prescribed in \u00a7 8575 of C. & M. Digest, but appellee\u2019s prayer for instruction No. 14, which the court granted, correctly set forth the statutory rule of comparative negligence, and, when the two are read together, there is no conflict between them, and no prejudicial error resulted to the appellant in granting instruction No. 8. A similar situation arosein the-case of St. L. I. M. & S. Ry. Co. v. Kilpatrick, 155 Ark. 632-638, where we said, speaking of an instruction precisely in the same language as that of appellee\u2019s prayer for instruction No. 8 in the case at bar: \u201cThis instruction will not be incorrect when other instructions are given conforming to the views herein expressed. It will not then, as counsel for appellant insist, permit a recovery, even though the contributory negligence of appellee is greater than that of the negligent employees of the railroad, for, when conformed to the views here expressed, the instruction will not permit a recovery unless appellee\u2019s contributory negligence is of a less degree than the negligence of the railroad employees, in which event -it will be proper, as the instruction directs, to \u2018 diminish the amount of the verdict in proportion to such contributory negligence.\u2019 \u201d Appellee\u2019s prayers for instruction Nos. 8 and 14, on the doctrine of comparative negligence, when taken together, certainly required the jury to find that appellee\u2019s negligence was less than that of the appellant\u2019s before they were justified in returning a verdict-in appellee\u2019s favor.\nCounsel insists in the last place that the court erred in granting appellee\u2019s prayer for instruction No. 9, as follows: \u201cIf plaintiff was injured by the running of a railroad train at a public crossing, the law presumes that the injury was negligently done; but the railroad, to -avoid liability for such injury, may show by a preponderance of the evidence that the injury was not the result of the negligence of the railroad.\u201d Appellant made only a general objection to the instruction, and, when read in connection - with the other instructions which the court granted, submitting the issue as to contributory negligence, it cannot be said that the instruction is susceptible of the construction that it limited the appellant to proving the absence of negligence on its part. On the contrary, when the instructions are read together, it occurs to us that the court\u2019s charge plainly told the jury that contributory negligence on the part of the appellee was a complete defense to the action unless such contributory negligence was of a less degree than the negligence, if any, on the part of the appellant. Where persons or property, are injured by the running of trains in this State, a presumption of negligence still obtains, notwithstanding the statutory doctrine of comparative negligence. See Davis v. Scott, 151 Ark. 34.\nThere being no reversible errors, the judgment is affirmed.",
        "type": "majority",
        "author": "Wood, J."
      }
    ],
    "attorneys": [
      "Thos. B. Pryor and Gordon Frierson, for appellant.",
      "Huddleston <& Little, and R. P. Taylor, for appellee."
    ],
    "corrections": "",
    "head_matter": "Missouri Pacific Railroad Company v. Robertson.\nOpinion delivered November 30, 1925.\n1. Railroads \u2014 negligence in crossing accident \u2014 jury questions.\u2014 Evidence in an action for personal injuries in a railroad crossing accident held to justify submission of the issues of negligence and of contributory and comparative negligence to the jury.\n2. Railroads \u2014 failure to keep lookout jury question. \u2014 Evidence held to justify submission to the jury of the question whether the testimony of the fireman to the effect that hq .kept a lookout was reasonable, self-consistent and uncontradicted.\n3. Railroads \u2014 failure to whistle for \u25a0 crossing \u2014 instruction.\u2014 An instruction that if the defendant\u2019s employees failed to whistle \u2022 for the crossing, but did whistle for the station, and that such station was a long blast, and nearer to the station than would have been the crossing whistle, failure to give the crossing whistle was not the proximate cause of the accident, held properly refused as argumentative and erroneous, since the failure to- give the crossing signal is negligence, and it' is for the jury to say whether such failure was the proximate cause of the injury.\n4. Railroads \u2014 contributory negligence \u2014 instructions\u2014It was not error, in an action for personal injuries received at a railroad crossing, to charge the jury that, if it appeared to this plaintiff as a reasonable person that greater danger was to b\u00e9 apprehended from one end of the track than the other, plaintiff might, give more attention to that end, where the court further charged that plaintiff would not be guilty of contributory negligence unless he failed to look both ways and to listen for approaching trains or to use ordinary care to avoid injury, such as stopping, if necessary, that he might better look and listen.\n5. Railroads \u2014 comparative negligence \u2014 instructions.\u2014Instructions given by the court, in a personal injury action, when taken together, held to require that plaintiff\u2019s negligence be less than defendant\u2019s before the jury would be justified in returning a verdict in plaintiff\u2019s favor.\n6'. Railroads \u2014 injury at crossing \u2014 instruction as to Presumption. \u2014 In an action for personal injuries received at a railroad crossing, an instruction that \u201cif plaintiff was injured by the ' running of .a railroad train at a public crossing,- the law presumes that the injury was negligently done; but the railroad, to avoid liability, may show by a preponderance of the evidence that the injury was not the result of the negligence of the railroad,\u201d \u2014 was not open to a' general objection when read in connection with instructions properly submitting the issue as to contributory negligence.\nAppeal from Greene Circuit Court; W. W, Bandy, Judge;\naffirmed.\nThos. B. Pryor and Gordon Frierson, for appellant.\nHuddleston <& Little, and R. P. Taylor, for appellee."
  },
  "file_name": "0957-01",
  "first_page_order": 977,
  "last_page_order": 982
}