St. L., I. M. & S. Ry. v. Box

52 Ark. 368

Opinion

Per Curiam.

Contributory Negligence. It is admitted that there was proof showing negligence on the part of the company in its failure to keep the road-crossing in repair; but it is argued that the plaintiff’s attempt to cross the track with a loaded wagon when he knew of the defective condition of the crossing, is of itself conclusive proof of contributory negligence, and bars a recovery.

It is certainly true that one cannot recover for an injury caused by his own wanton or unreasonable conduct in this, more than in any other, class of cases (See Rosenberry v. Ry., 45 Ark., 256), but a traveler is not compelled to abandon the use of the only highway conveniently accessible to him, merely because he is apprised that it is out of repair. “A person who, in the lawful use of a highway, meets with an obstacle, may yet proceed if it is consistent with reasonable care so to do ; and this is generally a question for the jury, depending upon the nature of the obstruction and all the circumstances surrounding the party.” This language, announcing the general rule which governs such cases, was used by the Supreme Court of Massachussets in a case very similar to this one. Mahoney v. Ry., 104 Mass., 73; see, too, Thomp. Neg., p. 1205, sec. 53.

Same. The defect in the road-crossing was not necessarily dangerous, and it was a question for the jury to determine whether, under the circumstances, the plaintiff was justified-in attempting to cross the roadway notwithstanding the defect, and whether in doing so, he used due care. The court submitted the question under proper instructions to them, and their verdict is conclusive here.

Affirm.