STATEMENT OF FACTS.
W. P. Thomas, Felix Bailey, Mollie Bumgarner, and R. H. Bumgarner brought this action in the circuit court against the Chicago, Rock Island Pacific Railway Company for damages to the automobile of W. P. Thomas, *Page 458 and for personal injuries to themselves, alleged to have been caused by the negligence of the defendant in operating one of its motor passenger cars.
W. P. Thomas was a witness for the plaintiffs. According to his testimony, he operated a grocery and furniture store on a public road about 150 steps from a public road crossing of the Chicago, Rock Island Pacific Railroad. About one-thirty o'clock P.M. on November 21, 1930, Felix Bailey and Mr. and Mrs. R. H. Bumgarner and himself left the home of the latter, situated opposite his store, and started in a Chevrolet automobile, driven by himself, to Malvern, Arkansas. The windows in the Chevrolet coach were about half way up. There were some sweetgum bushes along the right-of-way of the railroad company. The bushes were good, high bushes and had leaves on them. The public road was practically level, but was little upgrade. He said that his hearing and eyesight were both good, and that he did not hear the railroad engineer give any signals, either by ringing the bell or sounding the whistle, for the public crossing towards which they were traveling. Witness stated that he would have heard the bell ringing or the whistle blowing if such had been the case. He was listening for these signals and also looking as well as he could for approaching trains on the railroad track. He did not see the railroad coach until about the time it struck them. Just as plaintiffs got within fifteen feet of the crossing, witness discovered the railroad car; and just at that time the bell rang and the whistle blew, too. He tried to apply his brakes, turned his car down the track, and tried to avoid the collision, but was unable to do so. He stated that he was familiar with this railroad crossing, and sometimes crossed it fifteen or twenty times a day. The railroad passenger coach running from Camden to Malvern, Arkansas, was the one that struck them. Thomas stated that they were traveling at about the rate of fifteen miles per hour.
Felix Bailey, Mrs. Mollie Bumgarner and Roy Bumgarner were all witnesses for the plaintiffs, and their *Page 459 testimony was substantially the same as that of W. P. Thomas.
All of them were injured, but it is not necessary to abstract the testimony on this point because no complaint is made that the verdict was excessive.
Other witnesses for the plaintiff testified that the operatives of the railroad motor passenger car did not sound the whistle or ring the bell as the car approached the public crossing where the accident occurred. The witnesses testified that their hearing and sight were both good, and that they were close enough to have heard the bell ring or the whistle blow if such had been the case. They testified that they could and would have heard the bell ring and the whistle sound if these signals had been given.
C. H. Hooper, the engineer on the motor passenger car, was a witness for the defendant. According to his testimony, he had operated this motor coach in carrying passengers from Camden to Malvern, Arkansas, over the line of the defendant's railroad for the past two years. He remembered the collision in question. The motor car was stopped at the Missouri Pacific Railroad crossing to open an interlocking gate; and then, after the passenger coach had crossed the Missouri Pacific Railroad, it was stopped again to close the gate. After this the passenger coach was started up, going east towards Malvern. When the engineer got within 200 feet of the public crossing where the accident occurred, he saw the automobile going towards the crossing. When the engineer saw the automobile, his passenger coach was making about ten or twelve miles per hour, and he did not think the automobile was running any faster than that. The engineer thought the automobile was going to stop because it slowed up, but he rang the bell and sounded the whistle for the crossing as required by statute, and the bell was still ringing when the accident occurred. After he first saw the automobile 200 feet away, he did not remember seeing it again until just before the collision. He was on the right-hand side of the coach, on the opposite side *Page 460 from that on which the automobile was struck. He said that he had other things to watch besides automobiles. He cannot explicitly say how far the car in question was away from the passenger coach when he put on the brakes. He saw that the approaching automobile was getting too close for safety, and he applied all the brakes in emergency to avoid striking it. He stopped the passenger car in about twenty-five or thirty feet.
The conductor on the passenger motor coach of the defendant, and the freight mail and express messenger on it both testified that the engineer rang the bell and sounded the whistle for the highway crossing where the accident occurred. The bell was ringing continuously from the time the passenger coach started up after crossing the Missouri Pacific Railroad until it was stopped at the time of the accident. The motor passenger coach approached the crossing at a speed of between ten and twelve miles per hour. The passenger motor car stopped within fifteen or twenty feet after the engineer applied the emergency brakes. Other witnesses for the defendant testified that they were nearby and heard the bell ringing and the whistle blowing for the public crossing where the accident occurred. The bell was ringing all the time after the passenger coach left the crossing of the Missouri Pacific Railroad until the accident occurred.
Other facts will be stated or referred to in the opinion.
There was a verdict in favor of plaintiffs, and from the judgment rendered, the defendant has appealed. (after stating the facts). Counsel for the defendant rely upon the principles of law decided in Jemell v. St. Louis Southwestern Railway Company,178 Ark. 578, 11 S.W.2d 449, for a reversal of the judgment. They admit that there was a presumption of negligence when the plaintiffs proved that their injuries were received by the passenger motor coach of the defendant colliding with the automobile in which they were *Page 461 riding at the public crossing over the defendants railroad. They claim, however, that the facts in the present case bring it within the principles of law decided in the Jemell case, but we cannot agree with them in this contention. In the Jemell case the operative of the train saw the plaintiff drive upgrade to the edge of the tracks at the public crossing and then back down the grade. He supposed that the plaintiff would not again attempt to rule up the grade until after the train had passed. The plaintiff admitted that he did not look for the approach of the passenger train and admitted that he could have seen it if he had looked. The railroad track was straight at that point. When the plaintiff admitted that he did not look and could have stopped his car in time to avoid the accident if he had looked, he could not recover because his own negligence directly contributed to the happening of the accident, and there was no negligence on the part of the defendant because the fireman who was keeping the watchout was justified under the circumstances in believing that the plaintiff, when he backed his car down the grade just before the accident, would not drive up the grade again in front of a rapidly approaching train: The train was running at the rate of thirty-five or forty miles per hour.
Here the jury might have found that the facts were essentially different. According to the testimony of the plaintiffs, they were keeping a watchout for a train on the tracks of the railroad company. They were prevented from seeing the approaching train because of some bushes growing along the side of the railroad. There was no upgrade at the crossing. It was practically level. The engineer of the defendant's passenger coach admits that he saw the automobile in which the plaintiffs were riding about 200 feet away, but supposed that it was going to stop. He did not look around again until just before the accident occurred. From this testimony, the jury might have inferred that the negligence of the railroad company was greater than that of the plaintiffs. It will be remembered that there was a presumption of negligence *Page 462 from the fact that the plaintiffs were injured by the defendant's passenger motor car striking the car in which the plaintiffs were riding at a public crossing over the railroad. The jury might have found that the railroad operatives did not sound the whistle nor ring the bell for the approaching crossing as required by statute. The plaintiffs themselves testified that their eyesight and hearing were both good, and that they did not hear the bell ringing or the whistle sounding as the passenger coach approached the crossing. They were listening for these statutory signals and could have heard them if they had been given. There were no sounds or other disturbances to interfere with their hearing, and their testimony cannot be classed as negative. It was affirmative testimony under the circumstances, and was entitled to such weight as the jury saw fit to give it. Fort Smith Western Ry. Co. v. Messek, 96 Ark. 242, 131 S.W. 686; Slattery v. New York, N. H. H. Rd. Co., 203 Mass. 453,89 N.E. 622; Brown v. Milwaukee Electric Ry. Light Co.,148 Wis. 98, 133 N.W. 589; Philadelphia, B. W. Rd. Co. v. Gatta, 4 Boyce Del. 38, 85 A. 721, 47 L.R.A. (N.S.) 932.
There was a conflict in the testimony in this case, and it cannot be said as a matter of law that plaintiff's contributory negligence was greater in degree than the negligence of the defendant. Hence there was no error in the court refusing to direct a verdict against the plaintiffs.
Under 8575 of Crawford Moses' Digest, commonly known as the comparative negligence statute, an injured party, guilty of contributory negligence, cannot recover damages for an injury unless his negligence is of a less degree than the negligence of the railroad company. AS we have already seen, the facts and circumstances adduced in evidence in this case make it a jury question whether the negligence of the plaintiffs was of a less degree than that of the defendant. Davis v. Hareford156 Ark. 67, 245 S.W. 833; C. R. I. P Ry. Co. v. French, 181 Ark. 777, 27 S.W.2d 1021; St. L. S. F. Ry. *Page 463 Co. v. Haynes, 177 Ark. 104, 5 S.W.2d 737; Mo. Pac. Rd. Co. v. Sandifur, 183 Ark. 196, 32 S.W.2d 316.
No other assignments of error are urged for a reversal of the judgment, and it will therefore be affirmed.