This appeal involves a collision at a railroad crossing. The jury returned a verdict for appellees Missouri Pacific Railroad Company and Roy R. Brown, the engineer, upon which judgment was entered. For reversal appellants Henry Koch, Administrator of the Estate of Phillip E. Haralson, deceased, and Marie Koch assert only that, “The trial court erred in the giving of an instruction which excused the railroad from the performance of its statutory duties.”
The instruction, to which only a general objection was made, provides:
“When the presence of a train approaching or occupying a crossing is readily discoverable by means other than lights, signals or flag men, then the failure to have crossing lights, crossing signals or a flag man at the crossing and the failure of the train men to ring the bell or blow the whistle are not relevant factors for your consideration.”
Our cases hold that a general objection is good only if the instruction is inherently erroneous — i. e., the instruction could not be correct under any circumstance.
The partial record here shows that decedent was driving a dump truck with a gross weight of 35 tons at a speed of approximately 30 miles per hour. The train was traveling at approximately 40 miles per hour. Decedent struck the first boxcar behind the engine. The witnesses testified that decedent’s view was unobstructed, that a person who wanted to see could see the train. Admittedly some witnesses testified that the train whistle was blowing and that the other statutory signals had been given. There was also evidence to the contrary. Other evidence indicated that the brakes were faulty on the truck decedent was driving.
Our cases hold that the purpose of requiring a railroad to give signals is to warn the traveler of the approach of a train but that when the traveler otherwise has knowledge of the approach of a train, warning signals cease to be factors. Under those circumstances the failure to give the signals cannot be a proximate cause of the collision. See St. Louis & San Francisco Railroad Company v. Ferrell, 84 Ark. 270, 105 S. W. 263 (1907); Chicago, Rock Island & Pacific Railway Company v. Sullivan, 193 Ark. 491, 101 S. W. 2d 175 (1937); and Missouri Pacific Railroad Company v. Dennis, 205 Ark. 28, 166 S. W. 2d 886 (1942). Consequently an instruction is not inherently erroneous when it tells a jury under what circumstances the failure to give warning signals ceases to be a proximate cause of a collision at a railroad crossing.
It has been suggested, however, that the instruction here is inherently erroneous because it uses “readily discoverable” instead of “plainly discoverable” or some other such descriptive term. While we must admit that the instruction, above set out, is not a model instruction, it appears to us that any defect with respect to the phrase “readily discoverable” should be reached by a specific objection. If the court’s attention had been called thereto, the alleged defect could have been corrected merely by the substitution of a phrase or another adverb.
For the reasons herein stated the judgment is affirmed.
Fogleman, J., dissents.