STATEMENT OF FACTS.
This is an action by W. H. Rogers against the Missouri Pacific Railroad Company, C. E. Cleveland and *Page 726 J. H. Mayes, to recover damages for the death of Rogers' wife, which, he alleges, was caused by her being struck and killed by a south-bound passenger train operated by the Missouri Pacific Railroad Company, on which Cleveland was the engineer and Mayes the fireman, while she was walking across the tracks of said railroad company at a public street crossing in the town of Garner, White County, Arkansas. The right of recovery is based upon the common-law negligence of the railroad company in the operation of its trains, and also upon the doctrine of discovered peril.
The line of the railroad runs through the town of Garner in a general direction north and south. There are two main lines of tracks there for the operation of the trains. The north-bound trains run on the right-hand track, and the south-bound trains on the left-hand track. East of the right-hand track there is also a switching or storage track. Between ten and eleven o'clock on the morning of the 26th day of November, 1930, the wife of W. H. Rogers, while walking across the tracks of the defendant railroad company, at a public street crossing in the town of Garner, was struck and instantly killed by a south-bound passenger train of the railroad company on which C. E. Cleveland was the engineer and J. H. Mayes, the fireman.
Mrs. C. J. Austin was standing on the front porch of a house on the west side of the railroad tracks and saw the accident. There were no obstructions between her and the crossing where Mrs. Rogers was struck and killed. Mrs. Austin first heard the roar of the train coming south. She did not hear the whistle blown or the bell rung. At the same time there was a train approaching the station at Garner from the south. Mrs. Austin heard the whistle blowing and the bell ringing on the train coming from the south. The train coming from the north was nearer to her. At the time she first saw Mrs. Rogers, the latter was coming over the crossing from the east to the west side. Witness did not think that Mrs. Rogers ever saw the train that struck her because she was not looking that way. She seemed to be looking *Page 727 at the train from the south. At the time the south-bound train struck Mrs. Rogers, it looked like she just lacked a step or two of being clear of the track. She did not seem to walk any faster, but was walking about as she did when she came upon the track. When the train struck Mrs. Rogers, it carried her below the depot before it stopped. The train was running very fast. Witness went down to where the body of Mrs. Rogers lay, and she was dead when witness got there. Mrs. Rogers lived on the east side of the railroad. Witness first observed Mrs. Rogers as she came upon the crossing where she was killed. She came across the east main track and was almost across the west main track at the time the train struck her. There was nothing to obstruct Mrs. Rogers' view, and she could have seen the train coming from the north if she had turned her head that way.
According to the testimony of S. N. Kelly, he lived about 300 feet east of the crossing, and at the time of the accident was at the postoffice. He saw the train coming south from near the crossing which is about one-half a mile north of the crossing where Mrs. Rogers was killed. It whistled for the public crossing one-half mile north of the one where Mrs. Rogers was killed. There was a private crossing a quarter of a mile south of the north public crossing and a quarter of a mile north of the crossing where Mrs. Rogers was killed. Witness did not hear the train whistle any more after it left the north public crossing. He did not hear the bell ring. The train was running fast and was not scheduled to stop at Garner. There is only one public crossing in the town of Garner. Garner is not an incorporated town, and has about 100 or 150 inhabitants. There is quite a lot of traffic at the crossing where Mrs. Rogers was killed; and at this time, on account of gravel being hauled for the highway, there was more than the usual amount of crossing. From the time it whistled for the crossing north of Garner, it would take less than a minute for the train to run down to the main crossing in Garner. There was nothing to obstruct Mrs. Rogers' view to the north. It *Page 728 was a cold day, and there was a pretty strong wind blowing from the north.
E. W. Myrick had been unloading gravel from a freight car just below where the accident happened. The freight car was standing on the east switch line track, and its sides were about four feet high. The car which witness was unloading was north of the public crossing in Garner, and there were four or five gravel cars south of the crossing. Witness was standing in the car looking about at the time of the accident. Mrs. Rogers started across the track. There was a passenger train coming from the north and one from the south. The south-bound train was a little nearer the crossing that the north-bound train. The attention of the witness was directed mostly to the train coming from the south because they were looking for a local train to bring in more gravel cars. The train from the south whistled. The train from the north, which struck Mrs. Rogers, did not whistle or ring the bell. There was nothing that would have kept witness from hearing the whistle blow or the bell ring. The witness saw the train just at the moment it struck Mrs. Rogers. At this time the train from the south was whistling. Mrs. Rogers turned her head towards the train from the south before she was struck. When the train struck her, she was just about a step or two from being across the track. Witness estimated that the train was running somewhere from 65 to 75 miles an hour. He was standing up in the gravel car and was about fifty feet from the crossing where Mrs. Rogers was struck. The body of Mrs. Rogers was carried about 150 or 200 feet south of the crossing.
Burl Cowen testified that he was at a garage about 75 or 100 feet from the crossing and saw the train run by which struck Mrs. Rogers. It was going at a rate of about sixty miles an hour. The train crew did not ring the bell or sound the whistle as it approached the crossing where Mrs. Rogers was struck and killed. Witness heard the train from the south whistle. On cross-examination, he stated that he saw both trains and heard the *Page 729 train from the north whistle when it was about a half mile away.
According to the testimony of W. W. Lunsford, he saw the train when it struck Mrs. Rogers. He was south of the crossing, near the main line and switch track, and was hauling gravel. At the time of the accident, he had stepped off of his truck and was standing on the ground. He saw the train coming from the south and heard it whistle. He heard the train whistle from the north and saw Mrs. Rogers start across the public crossing. She was walking along with her coat collar up around her neck, and her head seemed to be a little down. She seemed to be looking straight ahead. She had crossed the east track and was starting to step across the last rail of the west track when she was struck. The train from the north did not whistle any more after witness noticed it whistling a good way up the track. Witness was in the open and could have heard it. The bell was not ringing. The train was running about sixty or seventy miles an hour.
J. L. Bell saw Mrs. Rogers when she was struck and killed. He had started across the railroad crossing and noticed the train coming from the north. He stopped to let the train go by, and his attention was called to a stranger in front of the depot. Just as he looked back again, Mrs. Rogers was coming right across the track at the crossing, and the train struck her just before she got across the track. The train that struck her was not whistling or ringing the bell. There was a train coming from the south at the time, and this train was whistling. Witness was about twenty-five feet from the train when it struck Mrs. Rogers. The train was going very fast.
C. E. Cleveland was the engineer on the train that struck Mrs. Rogers, and had been working for the railroad company forty-three years. The train was running on time on the day of the accident. He is familiar with the crossing north of the depot in Garner. There is a private crossing about a quarter of a mile north of the public crossing in Garner, and a public crossing about a half mile north. When the witness reached the whistle *Page 730 board of Garner, he began blowing the whistle and was keeping a lookout. He did not see the train strike Mrs. Rogers, and did not know that it had done so until he saw an object come out from the front of the engine. Then he knew that he had struck something, and put on the emergency brakes and stopped the train as soon as he could. When he reached the whistling board, he started the whistle and kept it blowing constantly until he passed over the crossing. He also turned the bell on before crossing the private crossing north of the station at Garner and never shut it off until after the train stopped. It was an automatic air bell ringer, and was in good working condition. Witness was on the right-hand side of the engine which was going south. When he got in about sixty feet of the crossing, it would have been impossible for him to see any one start across from the left-hand side of the track. This is on account of the way the boner is constructed. Witness was keeping a constant lookout, and the track was straight along there.
J. H. Mayes was also a witness for the railroad company. According to his testimony, the engineer blew the whistle at the road crossing about a half a mile north of Garner and then somewhere in the neighborhood of the private crossing, and between there and Garner he blew the station whistle. Before approaching the Garner crossing, he blew the whistle for that crossing and continued to blow the whistle. The engineer turned the bell on, and witness observed that the bell was ringing. Witness was on the left-hand side of the engine as it approached the crossing at Garner, and this would put him to the east side of the track. He was on the seat box where the fireman stays, and was keeping a constant lookout down the track. He saw Mrs. Rogers just as she stepped on the west main track and started across it. When he saw that she didn't stop, he turned on the seat to notify the engineer that a woman was on the crossing, but he was too late to prevent the accident. There was nothing that could have been done by the engineer or by the fireman to stop the train after witness saw her come upon the main track. *Page 731
The conductor and other witnesses also testified that the whistle was blowing and the bell ringing for the crossing.
There was a verdict and judgment for the plaintiff against the railroad company, from which this appeal has been taken. (after stating the facts). This case was not brought under the lookout statute or under the failure of the railroad to give the statutory signals by ringing the bell or sounding the whistle for a public crossing. It was based upon the alleged negligence of the railroad company at common law in the operation of its train as it approached the public crossing in the town of Garner and struck and killed Mrs. Rogers while she was on the public crossing there going across the railroad tracks, and also upon the doctrine of discovered peril.
In a case note to 7 Ann. Cas., at page 990, in discussing the question of the speed of the train as negligence in the absence of a prohibitory statute in connection with precautions, the annotator announces the general rule to be as follows: "Where it appears that no warning was given of the approach of a train to a crossing, the speed at which such train was moving is an essential element for the consideration of the jury in determining whether the company used due care under the circumstances." 22 R.C.L. 243, p. 1012, and 52 C.J., 1527, pp. 242, 244.
In discussing the same question in Ann. Cas. 1914B, at page 604, it was said that recent cases are in accord to the effect that, where no warning is given of the approach of a train to a crossing, the speed at which the train is moving is of material consideration on the question of negligence. The annotator further stated that the relation which the speed of a train bears to the various precautions which may be taken to avert an accident at a crossing was well stated in Louisville, H. St. L. Ry. *Page 732 Co. v. Lyons, 146 Ky. 603, 143 S.W. 31, where the court said:
"The lookout answers one purpose, the warning another, and the control of the speed yet another; and it often happens that the observance of either without the observance of all will not afford the required or indeed any protection. The lookout is primarily to enable the trainmen to control the movement of the train when they discover danger, while the warning is to give the traveler notice to keep out of the way, and the control of the speed is designed to make both the lookout and the warning more effective. In this case, for example, the fact that the engineer was keeping a lookout did not do any good, as at the speed the train was going he did not discover the peril of appellee in time to warn her of danger or avoid the accident."
Among the numerous cases cited in favor of the rule laid down by the annotator is St. L. I. M., S. Ry. Co. v. Kimbrell, 111 Ark. 134, 163 S.W. 513. In that case, the court said that the unusual speed of the train was a proper element of consideration under the circumstances of the case, although the speed of the train alone would not be sufficient to establish liability if all other precautions were observed by those in charge of the train. It is true that this case was decided after the passage of our lookout statute and after the passage of our statute requiring the blowing of the whistle and the ringing of the bell for a certain stated period before reaching a crossing; but the principle would be the same. In the absence of a statute requiring such provisions to be given, the railroad would not be allowed to operate its train at a rapid rate of speed over a public crossing in a town or a village where it might be supposed that people would be constantly going across the tracks at a public crossing without giving any warning or signal of any kind of its approach. In that case, the court recognized that, when the accident happens in a populous town, the jury might find that it constituted negligence to run the train at a rapid rate of speed without giving any kind of warning of its approach. *Page 733
This same rule was again recognized upon the second appeal in that case, reported in 117 Ark. 457,174 S.W. 1183. Where public necessity and convenience may require the operation of trains at a high rate of speed through cities and towns, yet such speed may be found by the jury to be an element of negligence where no warning is given of the approach of the train.
In the present case, the engineer and fireman both testified that they were observing the statutory signals for the approaching crossing by blowing the whistle and ringing the bell; but other witnesses testified that these statutory signals or warnings of the approach of the train to the crossing were not being given. They testified that they were at places where they heard such signals given by the train approaching from the south and did not hear any signals from the train coming from the north, either by ringing the bell or blowing the whistle. They were in possession of their faculties of hearing and would have heard the signals had they been given. Hence their testimony was not negative testimony, but was of affirmative character, to be given such weight as the jury might attach to it. St. L. I. M. S. Ry. Co. v. Kimbrell, 117 Ark. 457, 174 S.W. 1183; St. L. S. F. Ry. Co. v. Horn, 168 Ark. 195, 269 S.W. 576; St. L. S. F. Ry. Co. v. Haynes, 177 Ark. 104, 5 S.W.2d 737; C. R. I. P. Ry. Co. v. Thomas ante p. 457.
Again, the engineer and fireman testified that they were keeping a lookout; but, as we have already seen, that alone would not satisfy the requirement in cases of this sort. The jury might have found from the testimony a state of facts as follows: Mrs. Rogers' attention was attracted to the train from the south by the giving of the statutory warnings of its approach, by the bell ringing and the whistle blowing, and, not hearing any whistle blowing or bell ringing on the train from the north, her attention was concentrated on the train from the south, and the fireman or engineer keeping the lookout observed this and should have given a short blast of the whistle, which might have attracted her attention so that she would have quickened her pace and stepped *Page 734 from the place of danger to a place of safety. It will be remembered that the witnesses testified that she did not quicken her steps, and that one or two steps would have carried her to a place of safety. It is true that the witnesses testified that the train from the north did sound the blast of the whistle at a public crossing a half a mile north of the crossing at Garner, but they said that the whistle was not sounded or the bell rung any more after the first blast of the whistle was given. Hence the jury might have inferred that, although Mrs. Rogers might have heard this, when she heard the train approach from the south, she thought she was mistaken about having heard the whistle from the north, and that her safety lay in watching the train from the south. The jury were the judges of the credibility of the witnesses, and the weight to be given to their testimony; and, under the circumstances, it cannot be said as a matter of law that the railroad company was free from negligence, and that the negligence of Mrs. Rogers was greater than that of the railroad company.
While public convenience and necessity may require the running of trains through cities, towns and populous communities at a high rate of speed, yet the rapid rate of speed in connection with other facts and circumstances, such as the failure to give any warning whatever of the approach of the train to a public crossing and the like, is for the consideration of the jury in determining whether the railroad company was guilty of common-law negligence; and the conduct of its employees as a whole constituted negligence at the common law, which was the proximate cause of the injury in cases like this.
In this connection, it may be stated also that error is claimed on account of the admission by the court of evidence as to the position of gravel cars on the switching or storage track east of the main tracks. It will be remembered that one of the gravel cars was north of the public crossing at Garner, and the other three were south of it. We do not think there was any error in this respect. It tended to show that Mrs. Rogers' vision was to some extent obstructed by the position of these gravel cars; *Page 735 and, as their position with reference to the crossing at Garner was definitely stated, the jury could intelligently tell what, if any, obstruction to the vision of Mrs. Rogers was occasioned by their position.
It is also insisted that the court erred in submitting to the jury the question of comparative negligence under 8575 of Crawford Moses' Digest. The section reads as follows:
"In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence."
This was an independent act passed by the Legislature of 1919 and constituted a modification of the common-law doctrine of contributory negligence. It will be noted that the section expressly provides that in all cases against railroads for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the railroad company. There is nothing whatever in the language of the statute which would confine it to cases brought against the railroad under the lookout statute or under the statute for the failure to give signals for the approach to a public crossing. No reason is assigned why the language of the statute should not be construed according to its ordinary meaning and be applied to all suits of this sort against railroads, and we can perceive none. Therefore we are of the opinion that the statute applies, and that the court correctly instructed the jury on the question of contributory negligence according to its provisions.
As we have already seen, the case was also submitted to the jury under the doctrine of discovered peril. On *Page 736 this branch of the case but little need be said. Before the passage of our statute on comparative negligence, the court held that the doctrine of contributory negligence could not be used as a defense after the consequences of plaintiff's negligence had been discovered and when the injury might still have been avoided, had the defendant used ordinary care appropriate to the subject-matter, being greatest, of course, where human life is in danger. St. L. I. M. S. Ry. Co. v. Freeman, 36 Ark. 41.
Again, in Little Rock Fort Smith Ry. Co. v. Cavanesse,48 Ark. 106, 2 S.W. 505, the court said that the negligence of a plaintiff makes no difference where the direct cause of the injury complained of is the omission of the defendant, after becoming aware of the injured party's negligence, to use a proper degree of care in avoiding the consequence thereof.
In the case of C. R. I. P. Ry. Co. v. Elzon, 132 Ark. 431,200 S.W. 100, the court said that the doctrine of discovered peril is well settled in this State, and is to the effect that, when a traveler is discovered in a perilous position on or near the railroad track by the engineer on a moving train, it is his duty to use every reasonable precaution, consistent with the proper operation and management of their train, to avoid injuring the traveler. See also Huff v. Mo. Pac. Rd. Co., 170 Ark. 665,280 S.W. 648, and St. L. S.W. Ry. Co. v. Simpson, ante p. 633. Many other cases, applying the doctrine according to the facts of the particular case by this court, might be cited, but we deem such course unnecessary.
As a general rule, the engineer in a case of this kind might assume that a person, before starting across the track and while crossing it, would exercise due care and caution for his own safety. The case at bar, however, presents the question to be determined by a jury as to whether or not, under all the facts and circumstances here, the engineer and fireman knew of the impending peril of Mrs. Rogers, and that she was unaware of it, and should have given warning by a blast of the whistle or by ringing the bell, or by checking the speed of the train when he saw that Mrs. Rogers would likely reach a dangerous *Page 737 position on the crossing which she was unaware of, and which would result in her injury or death. Hence the jury might have found that the train operatives were negligent in the performance of their common-law duty in the premises, by not at least sounding the whistle, one blast of which might have prevented the injury.
It is also claimed that the court erred in not transferring the case to the Federal court, and on this point but little need be said. The case was removed to the Federal court and was remanded by it to the State court. It is well settled by the decisions of this court, and by the decisions of the Supreme Court of the United States, that where a case was removed to the Federal court and was remanded to the State court, the propriety of the remanding order will not be reviewed in the State court. K. C. So. Ry. Co. v. Wade, 132 Ark. 551, 201 S.W. 787; Powers v. Chesapeake O. Ry. Co., 169 U.S. 92,18 S. Ct. 264; McLaughlin Brothers v. Hallowell, 228 U.S. 278,33 S. Ct. 465; Mo. Pac. Ry. Co. v. Fitzgerald, 160 U.S. 556,16 S. Ct. 389; Pacific Live Stock Co. v. Lewis, 241 U.S. 440,36 S. Ct. 637; and Yankaus v. Feltenstein, 244 U.S. 127,37 S. Ct. 567.
The case was fairly tried before a jury under the principles of law applicable to the allegations of negligence relied upon for recovery, and was heard upon competent testimony. Therefore the judgment will be affirmed.