{ "id": 8718064, "name": "Kansas City Southern Railway Co. v. Winter", "name_abbreviation": "Kansas City Southern Railway Co. v. Winter", "decision_date": "1950-04-17", "docket_number": "4-9157", "first_page": "148", "last_page": "152", "citations": [ { "type": "official", "cite": "217 Ark. 148" }, { "type": "parallel", "cite": "228 S.W.2d 1001" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "202 Ark. 981", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449902 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/202/0981-01" ] }, { "cite": "204 Ark. 530", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444279 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/204/0530-01" ] }, { "cite": "3 A. L. R. 593", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "213 Ark. 643", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1466984 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/213/0643-01" ] }, { "cite": "197 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719267 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0225-01" ] } ], "analysis": { "cardinality": 509, "char_count": 8173, "ocr_confidence": 0.47, "pagerank": { "raw": 4.60167783687625e-08, "percentile": 0.2885917287069632 }, "sha256": "4100b5d364136b0ef05d9a3f3d2d83cc3cc2679fe601ec7d2c5d47652af12880", "simhash": "1:a14c64c1f30e7ea9", "word_count": 1423 }, "last_updated": "2023-07-14T21:48:24.265381+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kansas City Southern Railway Co. v. Winter." ], "opinions": [ { "text": "Holt, J.\nAppellee sued appellant to recover damages to bis automobile which resulted when his car was struck by one of appellant\u2019s Diesel powered passenger trains at a public street crossing in the town of Wilton, Arkansas. He alleged that appellant\u2019s negligence consisted in its failure to keep a proper lookout, to give statutory signals (Ark. Stats. 1947, \u00a7 73-716), and in ob- . structing the view by placing a car of creosoted poles \u201con the side track adjacent to the side crossing.\u201d\nAppellant answered with a general denial and affirmatively pleaded the contributory negligence of ap-pellee.\nA jury trial resulted in a verdict in appellee\u2019s favor for $1,000. From the judgment is this appeal.\nFor reversal, appellant earnestly argues that the evidence was insufficient to support the verdict and that appellee\u2019s own negligence was the sole proximate cause of the collision and resulting damage.\nAppellant has a line of railroad, running north and south through the town of Wilton, with its depot on the east side of the track. A road or street runs east and west immediately north of the depot, crossing the railroad track at right angles. A spur, or a house track, leads off from the main line track at a point 200 feet south of this street crossing and runs southward.\nAt about 9 o\u2019clock a. m., December 20, 1948, on the occasion of the collision involved here, there was a car of creosoted poles spotted on the house track at a point approximately 231 feet south of the crossing where the mishap occurred.\nAppellee, together with his wife (sitting on the front seat with him), his daughter and another party sitting on the back seat, approached this crossing in his ear at a speed of about twelve or fifteen miles per hour. Ap-pellee testified that he listened, and looked both ways, alternately, as he approached the crossing. His wife was also looking and listening. He did not stop the car as he approached the crossing. The railroad track is on a slight elevation and there is a slight rise np to and over the track as they approached the crossing. They did not hear the train, a whistle or a bell. They were \u2022 about twelve feet from the crossing when appellee first saw the engine of the train coming into view from behind the car of poles which tended to obstruct his view. The train was moving about forty-five miles per hour. Wilton is a nonstop town. Appellee applied his brakes and in trying to avoid a collision, turned his car to the right. The engine passed and cleared his automobile but the side of the baggage car collided with it. There was also testimony that after the train stopped, it backed up and did some additional damage to appellee\u2019s car.\nConsidering the evidence in its most favorable light in favor of appellee and the jury\u2019s verdict, as we must, we cannot say, as a matter of law, that there was no substantial evidence on which the jury could have based its verdict. In the circumstances, whether appellee\u2019s view as he approached the crossing was obstructed, whether proper signals were given, and a proper lookout kept, were questions that the jury might properly consider in determining the negligence of appellant. St. Louis-San Francisco Ry. Company v. Call, 197 Ark. 225, 122 S. W. 2d 178.\nThe question whether appellee was -guilty of contributory negligence, and also if the jury should find him negligent, whether his negligence equalled or exceeded that of appellant, were submitted to the jury.\nAt appellant\u2019s request, the court instructed the jury in accordance with our socalled \u201cComparative Negligence Statute,\u201d (Ark. Stats. 1947, \u00a7 73-1004, as amended by Act 140 of 1945 to cover property damage): * * Before the plaintiff (appellee) could recover anything in this case, he must prove by a preponderance of the evidence that there was negligence on the part of the operatives of the train, as alleged in the complaint, and even though you might find and believe from the evidence in the case that there was some negligence on the part of the operatives of the train, as alleged in the complaint, yet unless yon find that negligence was equal to or greater than that of the plaintiff, if any, then the plaintiff could not recover, and even though you might find and believe that the negligence on the part of the operatives of the train was equal to or greater than that of the driver of the automobile, then if you should find for the plaintiff, you should reduce his damages in proportion to the measure or degree of his negligence, as compared with that of the operatives of the train in causing and bringing about the damages resulting therefrom, if any.\u201d\nAppellant cites cases in support of his contention of the insufficiency of the evidence, but it suffices to say that all are distinguishable on the facts in each case.\nAppellant next.argues that the court erred in permitting appellee to testify, on the question of damages, that prior to the collision, he had his car overhauled at a cost of $512 by putting in a new motor, new radiator, and overhauling the front, and the further testimony, over his objection: \u201cQ. You knew the car before the accident you had? A. Yes, sir. Q. You could see the shape it was in after the accident? A. Yes, sir. Q. Based on that, did it look like it had any value ? Q. Has it any value except salvage value ? A. That is all \u2014 salvage value.\u201d\nHe says: \u201cThe measure of the damage, of course, is the difference between the market value before the accident and that immediately afterwards.\u201d\nWe think no error was committed in this connection. There was evidence that the car, after the mishap, had no value other than salvage of about $100, that it was worth about $1,000 before the collision, and if $898 were expended on repairs, it would have a value of $1,012. This testimony was proper in arriving at the measure of damages, which is conceded to be the difference between the fair market value before the collision and immediately thereafter. Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 593.\nAppellant also contends that the court erred in giving certain instructions requested by appellee and in refusing a number requested by appellant. The record reflects that five instructions were given on behalf of appellee and nine for appellant. We do not discuss each of these instructions separately. It suffices to say that we have carefully examined all and find no error in any \"of them. They appear to have fully and fairly covered every phase of the case.\nFinally, appellant says: \u201cThe court\u2019s so-called emergency instruction, given of his own motion to the jury after reporting that it failed to reach a verdict, contains clear reversible error, in the following language, to-wit: \u2018I believe it is a case that you men are capable of going in and sitting down and thrashing the thing out, and doing what you think is right and just in this lawsuit.\u2019 \u201d\nThe vice in the instruction, says appellant, is that, in effect, it gave the jury the power to do \u201cwhat they think is right and just,\u201d when the only power accorded them was \u201c to do what \u2022 the evidence and the law directs.\u201d We are unable to find prejudicial error in this admonition of the court. We cannot agree that the jury, presumably composed of \u201cpersons of good character, of approved integrity, sound judgment and reasonable information,\u201d (Ark. Stats. 1947, \u00a7 39-206) could have been misled, to appellant\u2019s prejudice, by such an admonition, the effect of which, it seems to us, was to do no more than to admonish the jury to do what was right and just in the light of all the facts, and instructions \"previously given. No abuse of the trial court\u2019s power has been shown.\nIn McNew v. Wood, 204 Ark. 530, 163 S. W. 2d 314, we held: (Headnote 6) \u201cThe practical administration of the law requires that tria) judges shall have the power to admonish the jury as to the desirability of reaching a verdict,\u201d citing Graham v. State, 202 Ark. 981, 154 S. W. 2d 584.\nOn the whole case, finding no error, the judgment is affirmed.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "Hardin, Burl\u00f3n & Shaw, for appellant.", "Shaver, Stewart & Jones, for appellee." ], "corrections": "", "head_matter": "Kansas City Southern Railway Co. v. Winter.\n4-9157\n228 S. W. 2d 1001\nOpinion delivered April 17, 1950.\nHardin, Burl\u00f3n & Shaw, for appellant.\nShaver, Stewart & Jones, for appellee." }, "file_name": "0148-01", "first_page_order": 172, "last_page_order": 176 }