(after stating facts.) The complaint in this case is predicated upon the following charges of negligence: ■
First, that the train was running through the corporate limits of Osceola at an extraordinary and unusual rate of speed.
Second, that those in charge of the train did not give signals by sounding the whistle or ringing the bell to apprise deceased of the approach of the train.
Third, that the train operatives were not keeping a constant lookout, as required by law, for persons and property upon the tracks.
Fourth, the presence of the stake upon which Mr. Ferrell stumbled.
1. The rate of speed was shown to be from 25 to 40 miles an hour, as variously estimated. There was no evidence that this was contrary to municipal law of the town of Osceola. But if it be conceded that it was negligent to run the train at this rate of speed at that place where the public was accustomed to walk, that would not help plaintiff’s case, for such rate of speed was not the proximate cause of the death of Mr. Ferrell. Had this train been running four miles an hour, instead of forty, the result would have been the same if the other facts in evidence had been present; and there is nothing to indicate that the other facts would not have been present had the rate of speed been moderated.
2. The evidence establishes that the usual signals for the station and crossing were given. One of the witnesses says he did not hear them. There were no special signals given on account of the presence of these gentlemen on the tracks. The object of signals is to notify people of the coming of the train. Where they have that knowledge otherwise, signals cease to be factors.
3. There is no evidence of a failure to keep a lookout. The plaintiff relied upon deductions from the train failing to stop or give special signals to these gentlemen on the track. .But there is nothing in the evidence to warrant such deductions. 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 the time when he crossed the main line and the time when Mr. Ferrell attempted to cross it was só sliortly 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.
4. No negligence of the company could be predicated upon the presence of the stake between the tracks. The stakes were as rightfully there as the ties. They were being used for the proper construction and maintenance of the road. Had Mr. Ferrell stumbled over the end of a tie, there would have been just as much room to argue that it was negligence to have an exposed tie where the public walked. The public who made use of the railroad track as a public way assumed the risks incident to its use as a railroad track.
Mr. Justice Riddick, in the case of Perdue v. Railway Company, 82 Ark. 172, said for the court: “The law exacts of the railway companies whose tracks áre laid along or across public streets that they shall use reasonable care and diligence in constructing and maintaining such tracks, so that the public which has also the right to use the streets may not be injured. But, while they are responsible for injuries to travellers caused by their negligence, they are not insurers of the safety of travellers, and are not bound to provide against everything that may happen on the highway, but only for such things as ordinarily exist or such as may reasonably be expected to occur.” This principle excludes the imputation of negligence against the company for permitting the stake to be between the tracks, because stumbling over it was only one of the things which may happen on a highway, not one which would be reasonably expected to occur.
The above statement of the principle is more favorable to the plaintiff than she was entitled to in this case, as the place of injury was not a public road, but merely a railroad track which the public was for the time being licensed to use for its convenience.
5. But, even if the railroad company was guilty of negligence in any of the particulars charged,' yet the contributory negligence of 'Mr. Ferrell would defeat the action. He was twelve inches from the ends of the cross ties when he stumbled and fell in front of the moving train. He knew the train was coming. He had a good and safe place to' travel on the west track; but for some reason he left that route, and was either running too near the main track for safety; or else, which is more probable, he was trying to follow his companion across to the east side, on which the depot was located. He would probably have safely crossed, as his companion did, had it not been that he unfortunately stumbled and met his death.
This is a stronger case of contributory negligence than was before the court in Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10, in which the court declared that the facts therein, as a matter of law, showed contributory negligence.
The circuit court erred in submitting the case to the jury.
Reversed and remanded.