The testimony on the part of the railroad company was to the effect that the train had been made up at Biddle, which is a division point in the suburbs of Little Rock where engines are inspected, and where this engine had been inspected and the headlight found to be in perfect condition, and no trouble of any kind developed during the trip, which began at Biddle; that it was only four or five miles from Biddle to the *Page 1102 Protho crossing, where the collision occurred, and that the run of this train and of similar trains between these points was usually made in about twenty-five or thirty minutes; that the automatic bell ringer was turned on when the train left the yards at Biddle and was not turned off until the train had gone some, miles beyond that point; that it was customary to ring the bell with the automatic bell ringer between Biddle and the Protho crossing because of the numerous road crossings between those points, and the engineer and fireman testified that they would not have dared run this train without the protection which a headlight afforded. Dr. Protho, near whose place the collision occurred, testified that he visited the scene shortly after the train had passed, and that the tracks of the truck showed that it was run "head-on" into the train.
If it be assumed that the jury disregarded all of this testimony, and that it was not arbitrary so to do because it was in conflict with other testimony on the subject, there are certain undisputed facts which it was arbitrary to disregard, and among others are these: The country was open and level, and there was nothing to obstruct the view of the approaching train. There had been no rain, and the night was clear, although the testimony does not show whether the moon was shining. Certainly the driver of the truck could have seen an object as large and as long as a train if he had looked, even though the headlight was not burning. More certainly could appellee have heard this train, had he listened. The train consisted of sixty-three cars in addition to the engine, and it had attained a speed of about forty miles per hour at the time of the collision. It could not have done this without making a noise which could have been plainly heard by appellee a sufficient distance away from the track to have enabled him to stop his truck if he had been paying the slightest attention to his surroundings. Appellee admitted that he could have stopped his truck in a distance equal to two or three times its length. The train could not have been stopped in many times that distance. *Page 1103
Appellee was thoroughly familiar with his surroundings, and for some time had been crossing the railroad tracks at the place of the collision twice daily. He knew that he was approaching the crossing, for he and the other occupants of the truck testified that they were listening for trains. Appellee did not claim that the engine struck his truck, but he did testify that he thought it was the first car next to the engine which had struck the truck. He testified. "I don't know what box car, but somewhere between the second or tenth or twelfth box car, somewhere along there."
The train crew testified that they knew nothing about the collision until the train stopped at Carlisle, which is twenty-seven miles east of the Protho crossing, when the conductor found part of an automobile radiator hanging on the oil box of the twentieth car from the rear of the engine, and this radiator was identified as the one which had been knocked off of appellee's truck.
The testimony appears to me to establish the fact beyond question that appellee ran his truck into the train; that the train did not hit him, but that he hit it, and if this is true it should be said here, as was said in the case of St. Louis-San Francisco Ry. Co. v. McClinton, 178 Ark. 73,9 S.W.2d 1060: "There is a presumption of negligence arising out of the fact that appellee was injured by the operation of a train; but the undisputed testimony is such that it must necessarily appear that appellee's negligence was greater than that of the operatives of the train, and, this being true, a recovery is not authorized by 8575, C. M. Digest," which is the comparative negligence statute under which the majority have upheld the verdict and judgment of the court herein.
I therefore dissent, and am authorized to say that Mr. Justice BUTLER concurs in the views here expressed. *Page 1104