text:
    Wade GRIFFIN, Jr. v. STATE of Arkansas
    5503
    455 S. W. 2d 882
    Opinion delivered June 29, 1970

      Ted Goldman, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of assisting in assault of officer Harold Vines in violation of Act 123 of 1967 [Ark. Stat. Ann. § 41-2802.1 (Supp. 1969)]. His points for reversal are:

1. While the testimony was sufficient to support a misdemeanor conviction for assault upon an officer in violation of § 41-2802, it was insufficient to connect assaults by others on the officer with that by appellant or to show that appellant had knowledge of assistance by others or community of intent and purpose with them, or that any such intent and purpose were communicated and thus insufficient to prove that two or more persons assisted him or that he assisted two or more persons in assaulting the officer.
2. The circuit judge neglected to instruct the jury that the testimony would not sustain a conviction on the charge made. (Under this point appellant argues that the statute is void for vagueness in that it fails to state that assistance in the assault must be given with “knowledge and communication of the intent and purpose of two or more other persons involved in such an assault.”)
3. The court’s instructions no. 3 and no. 8 failed to charge the jury that the prohibited assistance must be with “knowledge and communication of the intent and purpose of two or more other persons aiding in the assault upon the officer.”

Evidence upon behalf of the State was as follows:

Appellant’s automobile overturned in a ditch. The police were called. Officers Harold Vines and David Ederington arrived at the scene, and saw a crowd of people gathered there. The officers got out of the police car and Vines asked if anyone was hurt. Upon receiving a negative response from an unidentified person, Vines then asked who was driving the vehicle. Appellant, who was standing beside his vehicle, stepped forward, said “I was. I’m not scared, I’ve been in the war. I wasn’t killed over there. I’m not going to be killed here. Take me, G . . . d . . . you, if you can,” and started toward Vines with his fists. Vines attempted to halt Griffin by use of chemical mace, to no avail. Griffin started hitting the officer, who then attempted to defend himself by striking appellant twice with a “slapper.” A group of young colored males then “swarmed” him. Vines observed that some of the crowd had Ederington down in the street. Griffin was immediately in front of Vines, swinging at and striking him, while the others came up behind the officer and to his side. They knocked Vines down in the ditch, with all of the participants on top of him. Griffin was then on top of Vines, and the others at his. side. Griffin was beating the officer with his fists and kicking him and “hollering” all the while. At the same time, the other participants were kicking the policeman about his arms and legs, and striking him about his face, nose and side. They were also “hollering.” Vines, feeling that he and his companion were about to be killed, drew his pistol and fired at appellant, who was still kicking and beating the officer. Griffin was struck about his chest and backed away, as did the others. Vines said, however, that they were all still “hollering” at the police officers, cursing them and saying “that they were going to get us.”
As Ederington went to assist Vines, after having heard Griffin’s statement to the officer when that officer and Griffin started “scuffling,” he was “jumped” by two or three persons from the crowd, and knocked to. the street. After he had “scuffed around” with them for three or four seconds he heard the report of a gun and saw everyone start backing away. From his position on the ground, he then saw Vines leaning against a fence over in the ditch with his nose bleeding. Ederington saw Griffin standing about five feet from Vines. He heard Vines “holler” at the people standing around that if they didn’t want Griffin shot again they had better come get him. At that time Griffin was still trying to advance toward officer Vines. Appellant’s father then came and tried to hold him back.

Griffin’s version was quite contradictory to the testimony of the officers. He said that Vines was striking him on the head and back while he and Vines were on the ground.

Appellant raised the first point listed above by his motion for a directed verdict of acquittal at the conclusion of all the evidence. The point was asserted in the motion for new trial. The gist of his argument is that he had no knowledge of any assistance in the assault and that- the unlawful purpose of the aiders and abettors was not communicated so as to enable concert of action by appellant and two or more other persons. He cites authorities holding that: (1) where a particular intent is essential to constitute a crime, a person charged with aiding and abetting in the commission of the offense must be shown to have known of the criminal intent on the part of the person aided and abetted; and (2) that one is not criminally liable for the acts of his associates done without his knowledge or consent, because, in order for him to be held responsible for the acts of another, the act must be done in furtherance of a common design or purpose for which the parties combined.

Appellant seems to take the position that there must be direct evidence of a conspiracy, common design or purpose, and of the intent of the conspirators or joint actors to engage therein. In this he is mistaken. We have long recognized in Arkansas that it is not necessary that an unlawful combination, conspiracy or concert of action to commit an unlawful act be shown by direct evidence, and that it may be proved by circumstances. Parker v. State, 98 Ark. 575, 137 S. W. 253; Dickerson v. State, 105 Ark. 72, 150 S. W. 119; Venable v. State, 156 Ark. 564, 246 S. W. 860; Mondier v. State, 210 Ark. 933, 198 S. W. 2d 177; Housley v. State, 143 Ark. 315, 220 S. W. 40. It may be inferred, even though no actual meeting among the parties is proved, if it be shown that two or more persons pursued by their acts the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected. Chapline v. State, 77 Ark. 444, 95 S. W. 477; Parker v. State, supra; Dickerson v. State, supra; Mondier v. State, supra. Where the testimony shows a concert of action, between the persons alleged to have jointly committed a crime, or the person charged and another, it has been held sufficient to establish the necessary common unlawful object and intent. Parker v. State, supra; Doghead Glory v. State, 13 Ark. 236. Where the combination of persons to do an unlawful thing is shown, each of them is liable for the act of one proceeding according to the common plan, if it terminates in a criminal result, even though it is not the particular result intended. Mondier v. State, supra; Dorsey v. State, 219 Ark. 101, 240 S. W. 2d 30.

In Dickerson v. State, supra, we approved a jury instruction that if the jury found that three persons, charged with an assault, acted with a common and unlawful purpose, and that during the progress of the assault they were all present and participating, and aided and abetted each other, all persons so participating would be guilty of the same offense and each responsible for the other’s acts. The basis of objection to the instruction was that there was no evidence of any conspiracy formed between the three. We held that the facts and circumstances connected with the assault and the presence and participation of those charged was sufficient to show an unlawful combination among the parties to make the assault, and the instruction, a correct statement of law.

We find the case of Childs v. State, 98 Ark. 430, 136 S. W. 285, peculiarly applicable here. Dave Childs was convicted of the murder of one Franklin Williams. The crime was committed at a public speaking. There was bad blood between Childs and Williams because Williams’ wife, who was Childs’ sister, was seeking a divorce and custody of their children, alleging that Williams had cruelly beaten her. There were brief exchanges of words between the two. During the last such exchange Scott Childs, Dave’s brother, began cursing Williams, who first threatened trouble, then withdrew, when Dave Childs commenced firing a pistol at Williams, hitting him four times. There was testimony that Scott Childs had a knife in his hands and that a justice of the peace had restrained Williams from advancing on Scott before the attempted withdrawal. It was shown that Scott grabbed the breast yoke of a wagon and struck Williams over the head with it immediately after Dave quit firing. We said that the evidence was sufficient to justify the conclusion that Dave and Scott were acting together in making the assault on Williams.

Another case closely parallel to the one before us is Mondier v. State, supra, where we found the evidence sufficient to sustain the conviction of Mondier of voluntary manslaughter of Gerald Bradley, on a charge of murder in which it was alleged that he, Orville Wayne Sloan and Jerry McCabe, by common agreement, assaulted Gerald, Vernon and James Bradley, and while so engaged, Mondier aided Jerry McCabe in the slaying by attacking Vernon Bradley. The evidence only showed that: Mondier, McCabe and Sloan were denied admittance to a tavern, after which the son of the proprietor went outside and became engaged in a fight with someone; the Bradley brothers then went outside and were attacked by Mondier, Sloan and McCabe, in a fight which lasted about two minutes; Sloan stabbed James Bradley and McCabe cut Gerald, while Mondier engaged Vernon. We said that the jury was justified in finding that the fights were part of a mutual plan on the part of Mondier, Sloan and McCabe and that Mondier’s engaging Vernon Bradley to prevent his going to the aid of Gerald McCabe was a part of the mutual effort.

We have also held that simultaneous and concerted action by two prisoners in disarming and assaulting two officers having them in custody, sometime after the officers had left them alone in an automobile, was sufficient evidence to sustain a first degree murder conviction of one of them, as an aider or abettor, even though he did not assault the officer who was killed. Dorsey v. State, supra. In a murder prosecution, the mere fact that two persons separately approached a third, within a few hours for the purpose of prevailing upon him to kill a foúrth person, was held sufficient evidence from which to infer a conspiracy among the three to take the life of the victim. Decker v. State, 185 Ark. 1085, 51 S. W. 2d 521. The fact that each of two parties was found to possess portions of stolen goods taken in the same larceny was itself held competent to establish a conspiracy to take the goods and implicate both in the commission of the crime. Wiley v. State, 92 Ark. 586, 124 S. W. 249.

We,find that the circumstances shown by the testimony presented by the state were sufficient to pose a jury question as to whether the parties involved in the assault on the officers did so with a common intent and object pursuant to a common plan. It would be extremely difficult, if not impossible, to ever produce direct evidence of a conversation or meeting among the assaulters during the period intervening between the call of' the officers and the alleged challenge given them by Griffin, unless one of the participants elected to tell of it. This very problem, arising from the secrecy usually surrounding such understandings, gave rise to the rule, stated by Underhill and often cited by this court, that the existence of the necessary assent of minds may be, and usually must be, inferred from proof of facts and circumstances which, taken together, apparently indicate that they are mere parts of some complete whole. See Chapline v. State, supra.

We do not consider appellant’s other points, insofar as they are based upon the court’s neglect to give certain instructions to the jury, or the giving of instructions which did not advise the jury that it would be necessary that it find that a common intent and purpose existed among the alleged assaulters, which was known and communicated to appellant and resulted in a concert of action. We find no request for any such instruction in the record. If appellant desired that the jury be instructed on any issue, or point not covered by any instruction given, it was his duty to request an instruction correctly declaring the law on that subject. Lowmack v. State, 178 Ark. 928, 12 S. W. 2d 909; Cellars v. State, 214 Ark. 326, 216 S. W. 2d 47; Cooley v. State, 213 Ark. 503, 211 S. W. 2d 114; Pate v. State, 206 Ark. 693, 177 S. W. 2d 933. We find no such objection, as that now made, raised in the trial court, as required before we can review an instruction for error in this respect. Bailey v. State, 238 Ark. 210, 381 S. W. 2d 467; Lewis v. State, 155 Ark. 205, 244 S. W. 458; Guerin v. State, 150 Ark. 295, 234 S. W. 26; Banks v. State, 133 Ark. 169, 202 S. W. 43; Burnett v. State, 80 Ark. 225, 96 S. W. 1007. Furthermore, neither this argument, nor the appended argument that the statute was void for vagueness, appears to have been included in the motion for new trial or otherwise raised in the circuit court, so they are not preserved for review. Lomax v. State, 248 Ark. 534, 452 S. W. 2d 646; Nash v. State, 248 Ark. 323, 451 S. W. 2d 869.

We might add, however, that we do not find any basis for declaring the statute void for vagueness, or for failure to state explicitly the requirement of a specific intent on the part of the accused. The stated purpose of the act is to protect law enforcement officers from assaults while in the performance of their duties. The language is perfectly clear, and the intent to do the prohibited act is a criminal intent. Briggs v. State, 236 Ark. 596, 367 S. W. 2d 750, vacated on other grounds sub nom., Hamm v. City of Rock Hill, 379 U. S. 306, 85 S. Ct. 384, 13 L. Ed. 2d 300 (1964), rehearing denied sub nom., Lupper v. Arkansas, 379 U. S. 995, 85 S. Ct. 698, 13 L. Ed. 2d 614 (1965). Under our law, there must be in every assault an intention to injure, the ability to commit a battery and at least the beginning of an attempt to injure. Ark. Stat. Ann. § 41-601 (Repl. 1964); Anderson v. State, 77 Ark. 37, 90 S. W. 846; Pratt v. State, 49 Ark. 179, 4 S. W. 785. The statute then is not void for failure to state the requirement of intent. Neither is it void for failure to state the requirement of common intent. The words “assists or assisted by” are indicative of the same meaning as the words “aids, abets or assists,” which have a well-defined meaning in our law, as indicated in many of the cases cited hereinabove.

., We do not find persuasive appellant’s argument that we should abandon the requirement that specific objections be made to instructions in a trial court. The purpose of requiring objections is to give the trial court an opportunity to correct any error on its part. Fields v. State, 235 Ark. 986, 363 S. W. 2d 905; Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650.

In this respect, we must remember the role of this court as an appellate court, i. e., to correct prejudicial errors of a trial court in acting upon matters called to its attention. No judge has ever reached, or ever will reach, such state of perfection that a retrospective search of a record of trial will not usually reveal some erroneous action that might have been obvious to him and easily corrected if called to his attention. Our system of jurisprudence has never contemplated that kind of appellate review and it should not. To permit this type of review would permit a litigant to gamble on the outcome of a trial and engage the appellate court in a retrospective search for error when he loses.

The judgment is affirmed.

      Griffin said that he instructed someone to make this call.

      Appellant testified that this crowd consisted of 100 people or more.

      For other cases in which the conduct of the parties has been held sufficient to show a conspiracy, or combination between two or more persons to do something unlawful, see McGlosson v. State, 171 Ark. 1188, 286 S. W. 931; Davis v. State, 161 Ark. 665, 256 S. W. 866.


source: Caselaw Access Project

author: J. Fred Jones, Justice. Conley Byrd, Justice,

license: Public Domain

text:
    MISSOURI PACIFIC RAILROAD COMPANY v. LIGON SPECIALIZED HAULERS, INC.
    5-5296
    455 S. W. 2d 663
    Opinion delivered June 29, 1970

      Smith, Williams, Friday & Bowen, for appellant.

      Hardin & Richard, for appellee.
   J. Fred Jones, Justice.

This appeal by the Missouri Pacific Railroad Company questions the validity of a judgment rendered against it by the Saline County Circuit Court, on a jury verdict, in favor of the plaintiff appellee, Ligón Specialized Haulers, Inc. for damages to a flat-bed trailer in the amount of $4,603.57.

The recorded facts are briefly these: About 1:00 a.m. on November 25, 1968, the appellee’s truck driver, George Caster, drove the appellee’s truck tractor pulling a 40 foot trailer loaded with masonite and plywood, across the appellant’s railroad track at the Neeley Street crossing in Benton, Arkansas. This particular crossing is slightly elevated in that the rails and cross-ties are higher than the surrounding area, requiring traffic traveling in either direction on Neeley Street to go up an incline to the actual railroad rails in crossing the tracks. The appellee’s 40 foot trailer was equipped with “dolly wheels” protruding down from the front portion of the trailer, and a metal tool box, built to the underside, along the middle of the trailer. As appellee’s tractor and trailer crossed the railroad, the dolly wheels hung on the crossing as the tractor started downgrade after crossing the track, and the tool box near the center of the trailer became firmly lodged on the asphalt street surface between the railroad rails at the crossing. In other words, the loaded trailer was too long, and too low for this elevated crossing, and the trailer became more or less balanced across the railroad track in such manner that the drive wheels of the tractor lacked sufficient traction to dislodge the trailer and either pull or back it from the crossing. While the appellee’s trailer was thus stranded, and about four minutes after it became so, the appellant’s train rounded a curve about 700 or 800 feet from the crossing and struck the trailer.

Ligón, Inc. sued Missouri Pacific and its engineer J. F. Rose for the damages to its trailer allegedly caused as a proximate result of the railroad’s negligence in failure to keep a proper lookout; failure to properly apply the brakes; failure to stop within a safe distance; failure to give a warning signal; and failure to take emergency precautions to avoid the occurrence after the helpless condition of said truck was observed or should have been observed. The railroad company and its engineer filed answers of general denial and the railroad counterclaimed for damages to its locomotive in the amount of $5,796.84 as a direct result of the plaintiff’s negligence in operating a vehicle that did not have proper clearance; in attempting to cross the tracks after such defective clearance had become apparent; in failure to take reasonable steps to warn the approaching train of the presence of the trailer; and in otherwise failing to exercise ordinary care for its safety and the safety of others. Ligon’s complaint was amended to allege that the engineer J. F. Rose was guilty of negligence in operating a train at a speed too great for the circumstances then and there existing.

By stipulation the parties agreed that Ligón, Inc. sustained damage to its truck in the amount of $4,-603.57, and that Missouri Pacific sustained damage to its diesel unit in the amount of $5,796.84. The trial court granted a motion for a directed verdict for the defendant J. F. Rose on the ground that there was no evidence to establish a jury question on his being independently and individually liable under the complaint and the amendments thereto. The propriety of this procedure is not questioned. The case was presented to the jury on the sole issue of alleged negligence of the railroad company in operating its train at a high speed. Trial resulted in a verdict and judgment for Ligón, Inc. as already stated and Missouri Pacific relies on the following points for reversal:

“The trial court should have directed a verdict for the defendant, Missouri Pacific Railroad Company, on the complaint on the grounds that there was no substantial evidence upon which a jury question could be made regarding the allegation of excessive speed, and there was no causal connection between the speed of the train and the accident.
The court erred in giving plaintiff’s requested instruction No. 16 on speed.”

We are of the opinion that the court erred in its failure to direct a verdict for the defendant Missouri Pacific for the reason that there was no causal connection between the speed of the train and the accident in this case. Having reached this conclusion, the propriety of plaintiff’s instruction No. 16 becomes moot and we do not reach it.

Mr. Richard Parnell testified that he had been employed as a truck driver by Ligón, Inc. for eight or nine years and that on the night of the accident he crossed the Neeley Street crossing with his truck immediately ahead of George Caster. He testified that both trucks were loaded but that the wheels on his trailer were spaced farther apart than the ones on Caster’s trailer and that the tool box on his trailer was between the spaced wheels, whereas the tool box on Caster’s trailer was in the middle of the trailer. He testified that after he crossed the railroad track and pulled into a parking lot, he looked back and saw that Caster’s truck was hung on the railroad crossing. He says that he and his relief driver started to back their rig up to Caster’s rig in an attempt to pull it off the track, but that before he could get hooked up to Caster’s truck, he heard the whistle of a train and saw the lights coming. He says that at that time Mr. Caster had walked down the tracks with his flashlight for the purpose of signaling a train in the event one would come through. He says that when he saw the train coming, he attempted to move his truck out of the way and had moved it approximately 10 feet when the train struck Caster’s trailer. He says that fuzees and flares are carried in the Ligón, Inc. trucks but that no effort was made to put one out in this instance.

Mr. J. F. Rose, the engineer, testified that on the night in question the train was traveling from Little Rock to Texarkana; that his maximum permissible speed was 79 miles an hour, and he was traveling 78 miles an hour. He says that they approached the Neeley Street crossing out of a curve which was not sharp enough to require a reduction in speed. He says that he observed no flares or reflector lights on the truck and did not see anyone attempting to flag him with a flashlight. He testified that the Neeley Street crossing came into view after rounding a curve 700 or 800 feet from the crossing, but that on the night in question he did not know, or could not tell, that the truck trailer was across the track until he saw its outline when about 400 feet from the crossing. Mr. Rose testified that it would have taken approximately three-quarters of a mile to stop the train when the brakes were applied in emergency, and that he could not have stopped the train in a shorter distance than three-quarters of a mile at the speed he was traveling. The appellee’s trailer was a flat-bed trailer and engineer Rose testified that he was unable to see it and determine that it was on the track, until it was in the view of his headlight.

There is no question in this case that the limit of permissible speed through the Neeley Street crossing was 79 miles per hour, and that the train was traveling within the. permissible speed limit. Engineer Rose testified without contradiction that it would take three-quarters of a mile to stop the train at the speed of 78 miles per hour, and that the Neeley Street crossing only became visible 700 or 800 feet after emerging from a curve in the railroad track. It must be remembered in this case that the railroad company owned its tracks and had a right to use its railroad for the purpose it was built. The railroad company had the same right to cross Neeley Street with its trains as Ligón, Inc. had to cross the railroad with its tractors and trailers. Missouri Pacific R.R. Co. v. Nelson, 195 Ark. 883, 115 S. W. 2d 872. As a practical, common sense matter, if railroad companies were required to operate trains at a speed commensurate with any dangerous situation that might be created by members of the traveling public at street or highway crossings; then the railroads could never maintain any sort of time schedule in the operation of trains, and commerce over railroad systems would become impossible.

It is true, in the case at bar, that the Neeley Street crossing was a busy crossing where many motor vehicles per day crossed the railroad. There is nothing in the record, however, to indicate that the Ligón, Inc. tractor and trailer would not have safely crossed the railroad, even after the train’s headlight became visible and its whistle and bell became audible, had the trailer not become hung up on the crossing. Neither is there evidence that Mr. Caster, the truck driver, would have attempted to cross the track had the train headlight been visible or its whistle and bell been audible as the tractor and trailer approached the crossing. In other words, there is no evidence whatever that this collision would have occurred had Caster not attempted to cross the elevated tracks on Neeley Street with his low and heavily loaded 40 foot trailer which became more or less balanced across the railroad track. Neither is there any evidence in the record before us that, the railroad company or its engineers would or should anticipate, or be expected to anticipate, that anyone using the Neeley Street crossing would attempt to pull a 40 foot trailer with a tool box compartment under its middle, across the tracks at this crossing. In other words, the railroad company had a right to anticipate and believe that motorists using the Neeley Street crossing would either wait a safe distance from the crossing for approaching trains they would see or hear coming; or that they would cross the tracks without delay ahead of approaching trains they could not see or hear coming.

We agree with the appellee that there may be fact situations in which the speed of a train may constitute questions of negligence for jury determination, but we hold that such is not the situation in the case at bar. There is no evidence in the record before us that the train was traveling off schedule and at an unusual speed as was the situation in Davis v. Scott, 151 Ark. 34, 235 S. W. 407, cited by the appellee. In the case at bar the train was traveling on schedule and at the usual rate of speed. The record is clear, as we view it, that the proximate cause of the accident and resulting damage in the case at bar, was the unusual position of the appellee’s trailer on the appellant’s railroad track and not the unusual speed of the appellant’s train.

The judgment of the trial court is reversed and this cause dismissed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. We have a statute in Arkansas, Ark. Stat. Ann. § 73-1002 (Supp. 1969), that provides:

“It shall be the duty of ali persons running trains in this State upon any railroad, to keep a constant lookout for all persons, including licensees and trespassers, and property upon the track of any and all railroads, and if any such persons or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad or its agents, servants, and employees, shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout.

It seems ridiculous to me that we can say that speed is not a question of fact for the jury under the circumstances here involved where the lookout while approaching heavily traveled highway crossings at the speed authorized by the Railroad Company furnishes the operators of a train no operable information other than to inform them of the inevitable fact that they will hit appellee’s truck. What good is a lookout at a highway crossing if at the time visibility is possible one is traveling at such speed that stopping is impossible and a collision is inevitable? The logic fails me.

Furthermore, I point out that on objection of the railroad, evidence of other similar accidents at the crossing was excluded. In Ford Motor Company v. Tritt, 244 Ark. 890 A, 430 S. W. 2d 778 (1968), we held that where one is successful in excluding such evidence before the trial court, he is estopped on appeal to say that the evidence is insufficient when the excluded evidence would make a question of facts for the fact finder.

For these reasons I would affirm.


author: J. Fred Jones, Justice.

text:
    Don E. HARDING and Thomas M. HILDEBRANDT v. STATE of Arkansas
    5513
    455 S. W. 2d 695
    Opinion delivered June 29, 1970

      Odell Carter, for appellants.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen. for appellee.
   J. Fred Jones, Justice.

Don E. Harding and Thomas M. Hildebrandt were convicted in the Lincoln County Circuit Court of the crime of attempt to escape. They were sentenced to three years in the penitentiary and on appeal to this court rely on the following points for reversal:

“These cases should be reversed and dismissed since the trial court refused to take any action upon the Motion for a new trial until the next term of Court.
These cases should be reversed and dismissed for the reason that the State did not prove that there was a conviction and that the alleged attempted escape was from a confinement by virtue of lawful imprisonmnent or confinement.
A mistrial should have been granted upon proof that the juror was exposed, during the trial, to improper influence.
The verdict is contrary to the weight of the evidence.”

Since we must reverse and remand this case for error alleged under appellants’ second point, the alleged errors under the other points will not likely arise again and to consider them here would only add volume without substance to this opinion.

The law which the appellants were accused of violating is Ark. Stat. Ann. § 41-3513 (Supp. 1969), which reads as follows:

“It shall be unlawful for any person who is lawfully imprisoned in any jail, or other place of confinement, or held in the custody of any officer, for any cause whatsoever to escape, or attempt to escape, from such imprisonment or custody without the use of force or violence to the person; and upon conviction therefor, such person shall be imprisoned for a period of not more than three (3) years; provided however, that the sentence imposed under this provision for the crime of escape or attempt to escape from imprisonment or custody shall not exceed the period of confinement imposed for the conviction of the offense for which such person is imprisoned, or prescribed by law for the conviction of the offense for which said person may be in the custody of any officers.”

The appellants were charged on separate, but identical, informations filed by the prosecuting attorney in the following language:

“The said defendant on the 20th day of June, 1969, in Lincoln County, Arkansas, did then and there wilfully, unlawfully, being a convict sentenced to the Arkansas State Penitentiary, and being held in custody on the Cummins Unit at Grady, Arkansas, a branch of the Arkansas State Penitentiary, in pursuance of an order of commitment regularly issued, did then and there wilfully, unlawfully and feloniously attempt to escape from said penitentiary, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Arkansas.”

The record reveals the following facts: The isolation cells at the Cummins branch of the Arkansas Penitentiary consist of heavy wire cages inside a building and unruly prisoners are assigned to these cells as punishment for violation of prison rules and regulations. Armed guards are stationed in elevated “towers” around the isolation area and trusty guards keep a close check on the isolation cells inside the building. The appellants were isolated together in one of the isolation cells and Booker T. McDonald was one of the trusty guards. About 10 p.m. on June 20, 1969, the appellants were discovered outside the isolation cell and outside the isolation building. The wire forming the top of the isolation cell had been cut above the sink in the cell and the wire had been pulled or bent down, forming a rectangular or square hold in the top of the cell. The trusty guards testified that when the appellants’ cell was found empty about 10 p.m., an alarm was sounded and a searchlight from the tower revealed the appellants running away from the isolation building toward a new building under construction near a fence. The two guards fired several shots at the appellants and Hildebrandt was wounded in the side.

The appellants’ testimony differs considerably from that of the guards. They explained that for some reason, which was not quite clear to them, but in any event, wholly without foundation, guard Booker T. McDonald had formed a dislike for them, and when he found them inspecting a hole some former inmate or other person had cut in the wire top of their isolation cell, McDonald forced them, at the point of his cocked and loaded revolver, to climb through the hole and leave the building. The only logical conclusion they were able to draw from such conduct on the part of McDonald, was that McDonald wanted them killed in a prison break. They testified that they were actually on their way back to the isolation cell with their hands raised when the guards started shooting at them. McDonald and the other guards testified that McDonald had been relieved for his evening meal and had not returned from the dining area when the appellants were discovered outside their cell by the other guards, including McDonald’s relief guard.

The question of whose version of the facts is correct is not important on this appeal, for this case does not turn on the voluntariness of the appellants’ acts in leaving the cell. The state argues that “the record is replete with testimony from which the jury could easily believe that appellants were convicted felons and in lawful custody at the time they made their attempt to escape.” The state has failed to specifically point out such testimony and we have been unable to find such in the record. It might be easy to believe that the appellants were convicted felons and in lawful custody, otherwise they would never have been in an isolation cell in the state penitentiary. Especially is this true since the appellants did not deny that they were lawfully imprisoned in the isolation cell at the penitentiary. The trouble with this approach, however, is that one must be lawfully imprisoned or held in custody before he can be guilty of escape or attempt to escape. The burden rests on the state to prove its allegations against the appellants, and does not lie on the appellants to disprove the allegations made by the state.

The mere fact of physical custody or imprisonment is not such evidence that will sustain a conviction for escape or attempt to escape. The lawfulness of the imprisonment or custody from which the escape is made or attempted is the statutory essence of the criminal offense of escape or attempt to escape, and the lawfulness of the imprisonment or custody from which the escape is made or attempted must not only be alleged by the state in the indictment or information, it must also be proved. It may be argued that a person who is incarcerated in the state penitentiary and spends a great deal of time in isolation for infraction of rules may be presumed to be lawfully imprisoned. No such presumption attends the charge of escape or attempt to escape under the statute or under our prior decisions.

In State v. Murphy, 10 Ark. 74, Murphy escaped from the penitentiary and was recaptured and tried for escape. The record of his original trial and conviction was placed in evidence. The identify of the prisoner was the real point in issue. The jury was instructed, at Murphy’s request, that they would not find the prisoner guilty, unless they were satisfied from the evidence that he was the same identical Westley Murphy who was so convicted and sentenced for larceny. The Attorney General then moved the court to instruct the jury that any such question as to the personal identity of the prisoner at the bar was waived by his plea of not guilty to the indictment; and that upon the introduction of the transcript of the record of the Johnson Circuit Court, the jury were bound, by law, to presume, in the absence of any proof to the contrary, that the prisoner at the bar, was the same identical Westley Murphy, appearing by said transcript to have been so convicted and sentenced for the crime of larceny. In affirming the trial court’s failure to give this instruction, this court said:

“The fact that the accused was the same individual that had been convicted of larceny in the Johnson Circuit Court, was a material and traversable averment in this indictment, and by coming in and pleading the general issue, he did not admit his identity in respect to that conviction. The offence charged upon the defendant in the Court below, can be committed by a convict only, and in order to fix that character upon him it devolves upon the State to prove his conviction by the record, and his personal identity by proof aliunde.” (Emphasis added).

In Sandford v. State, 11 Ark. 328, the state was permitted to read into the record, on trial for escape, judgment from transcript of the original conviction for larceny, in order to show that the prisoner had been legally convicted.

In 70 A. L. R. 2d § 3, under Anno: Justification for Escape, is found the following:

“Mere confinement within prison walls, in violation of the law of the state, does not make such imprisonment a lawful one from which it is a crime to escape if opportunity offers, said the court in People v. Ah Teung (1891) 92 Cal. 421, 28 P. 577, 15 LRA 190.
* * *
See also People v. Perry (1947) 79 Cal. App. 2d Supp. 906, 180 P. 2d 465, holding that there could be no conviction of the crime of resisting arrest unless the arrest was lawful, the court saying that the same rule was applied in holding that an escape from unlawful confinement was justified.
* * *
Where the accused was incarcerated in prison by virtue of a commitment valid on its face, he was lawfully in custody and his unauthorized departure constituted escape, said the court in People v. Jones, (1958) 163 Cal. App. 2d 118, 329 P. 2d 37, adding that he had his legal remedies to enforce his legal rights and was not justified in resorting to self help.
* * *
In State ex rel. Farrior v. Faulk (1931) 102 Fla. 886, 136 So. 601, it was stated that escape presupposes actual lawful custody, and that before one could be charged with the offense of escape it must be shown that at the time of the alleged escape the prisoner was held in lawful custody on a valid charge of a criminal offense or upon a conviction of such an offense.
Reversing a conviction of felony escape because of the insufficiency of the showing that defendant was incarcerated under a charge or conviction of felony at the time of the alleged escape, the court in Fulford v. State (1959, Fla. App.) 113 So. 2d 572, said that proof of lawful custody is an essential of the crime of escape, and that the warden’s testimony that defendant had been in his custody for 6 months prior to the escape was not proof that that custody was lawful.
And see Melton v. Culver (1958, Fla.) 107 So. 2d 378, stating, generally, that an indictment or information charging an escape must reflect the legality of the custody at the time the escape was committed.
* * *
In Commonwealth v. Houseman (1881) 3 Ky. LR 331 (abstract), it was said that to constitute a complete offense the person charged to have been suffered to escape must have been lawfully in the officer’s custody, and it should be so charged in the indictment.
In a prosecution for harboring an escaped prisoner, Bellew v. State (1958) 238 Miss. 734, 106 So. 2d 146, app. dismd. and cert. den. 360 U. S. 473, 3 L. Ed. 2d 1531, 79 S. Ct. 1430, the court approved the admission of evidence as to the offenses with which the escapee was charged, saying that it was necessary for the prosecution to prove that the prisoner was in lawful custody at the time of his escape.
* * *
The early English authorities apparently recognized that a showing of lawful custody was necessary for a conviction of escape. Frequently cited are 1 Hale PC 610; 2 Co. Inst. 590; 2 Hawkins PC ch. 18 § 5.
* * *
The law has always demanded, before one should be adjudged guilty of the crime of escape, that the imprisonment from which he broke should be shown to be lawful and well-grounded, and it will not endure that one imprisoned without any ground or contrary to law should be adjudged guilty of felony for even forcibly regaining that liberty to which he was always and at every moment entitled, said the court in Commonwealth v. Miller (1835, Pa.) 2 Ashm 61, adding, however, that it was not merely those who were guilty of felony or other crime who might be rightfully imprisoned, but that, under many circumstances, those actually innocent might be lawfully confined and ought to submit themselves until delivered by due course of law.”

In the federal case of Mullican v. United States, 252 F. 2d 398, 70 A. L. R. 2d 1217, Mullican and Shores were charged by separate indictments under the Federal Escape Act, 18 USCA § 751, with unlawfully escaping from confinement in the Federal Correctional Institution, Texarkana, Texas. They were tried and convicted. The government introduced as its exhibit No. 1, a copy of the judgment and sentence of the district court under which Shores was sentenced to three years for interstate transportation of a solen automobile. Government’s exhibit No. 2 was a photostatic copy of record of the judgment and sentence of the district court for the Southern District of Texas showing that Mullican was sentenced to two years imprisonment. Government’s exhibit No.. 3 was a group of photostatic documents, one of which purported to be a copy of a letter from the director of Bureau of Prisons pertaining to the place of confinement for Mullican. The original documents referred to in the letter were not in the custody of the Bureau of Prisons and the letter so stated. In holding that the photostatic copies were inadmissible, the court said:

“It is not shown by the certificate that the copies, from which the photostat copies were made, were of themselves official documents or that they were true copies of the originals.”

The Fifth Circuit Court of Appeals then defined the federal statute under which the appellants were convicted and commented on same as follows:

“Since there seems to be little if any question but that the appellants were inmates of the Federal Correctional Institution at Texarkana and that they escaped from it, it seems proper to consider whether or not the admission of Government Exhibits 3 and 4 was harmless error. The statute defining the crime for which the appellants were indicted, tried and convicted, provides that:
‘Whoever escapes or attempts to escape from . . . any institution in which he is confined by direction of the Attorney General, . . . shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both.’ 18 USCA § 751.
•It may be unnecessary to trace a prisoner by documentation from courtroom to the place from which he escaped in order to sustain á conviction for escape but if the .indictment charges, as do the indictments against Mullican and Shores, that the accused was in confinement by virtue of a conviction, there must be proof that there was a conviction and that the escape was from confinement by virtue of the conviction. Convictions are shown by Government Exhibits 1 and 2, but with Exhibits 3 and 4 excluded the confinement pursuant to convictions was not established. Although the validity of the conviction is not an essential element of the offense as was held in Aderhold v. Soileau, 5 Cir., 1933, 67 F. 2d 259, and in United States v. Jerome, 2 Cir., 1942, 130 F. 2d 514; 317 U. S. 606, 63 S. Ct. 62, 87 L. Ed. 492, there must be proof of confinement pursuant to a conviction. This is generally shown by official records. 18 Am. Jur. 370, Escape, Prison Breaking and Rescue § 27. The errors were, in our view prejudicial.”

Thus, it is seen that the statute under which the appellants were convicted in the case at bar, is much more restrictive than is the statute under which Mullican was convicted. The, appellants in the case at bar were not charged with escape under the Act. of December 17, 1838, Ark. Stat. Ann. § 41-3508 (Repl. .1964), which provides that if any convict sentenced to the penitentiary shall escape, he shall on conviction thereof be punished, etc. The appellants were charged with the crime of attempt to escape as defined and set out in § 41-3513, supra.

As originally enacted in 1953, Ark. Stat. Ann. § 41-3513 (Repl. 1964) read as follows:

“Every person lawfully imprisoned in any jail or other place of confinement or held in custody of any officer, for any cause whatever, who shall escape or attempt to escape without the use of force or violence from such imprisonment or custody shall be guilty of a misdemeanor and upon conviction shall be fined in any sum not more than five hundred dollars ($500.00) or imprisoned for any time not to exceed six (6) months, or both.”

By Act No. 230 of 1967 violation, of the original 1953 Act was made a felony instead of a misdemeanor. Upon conviction under the 1967 Act, the penalty was fixed at imprisonment in the penitentiary of not less than one year nor more than three years. The ’53 and the ’67 Acts were amended in 1969 to the present form of Ark. Stat. Ann. § 41-3513, supra. Act 66 of 1969 is a short one-section Act and only adds to the statute as amended in 1967, the following:

“. . . provided however, that the sentence imposed under this provision for the crime of escape or attempt to escape from imprisonment or custody shall not exceed the period of confinement imposed for the conviction of the offense for which such person is imprisoned, or prescribed by law for the conviction of the offense for which said person may be in the custody of any officer.”

Act 66 of 1969 became effective on August 7, 1969; the informations were filed against the appellants on July 7, 1969, and they were tried and convicted on January 22, 1970. The amendment provided by Act 66 of 1969 makes it now necessary to not only show by competent evidence that a person being tried for attempt to escape was lawfully imprisoned, or held in custody at the time of the attempt to escape, but it must also be shown in order to fix punishment, “the period of confinement imposed for the conviction of the offense for which such person is imprisoned, or prescribed by law for the conviction of the offense for which said person may be in the custody of any officer."

There was no evidence at all in the case at bar that the appellants were lawfully imprisoned or held in custody. There was no evidence at all that they had even been sentenced to the penitentiary except the evidence that they were there. We conclude that the judgment of the trial court must be reversed and this cause remanded for a new trial.

Reversed and remanded.

Harris, C. J., dissents.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Henry KOCH, Administrator et al v. MISSOURI PACIFIC RAILROAD COMPANY et al
    5-5294
    455 S. W. 2d 858
    Opinion delivered June 29, 1970

      Sexton & Wiggins and Jack Yates, -, lor appellants.

      Boyce Love, for appellees.
   Conley Byrd, Justice.

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.

John A. Fogleman, Justice,

dissenting. The basis of my disagreement with the majority lies in my feeling that the instruction of which complaint is made is inherently erroneous, so that a general objection would reach the defect I find. Consideration of the evidence in the particular case is not helpful, because I agree that an instruction is not inherently erroneous unless it would be an incorrect statement of the law under any circumstances. I think this one is, although some apparent support for it may be found in language of some of our opinions taken out of context.

In evaluating this instruction, I think that appellant makes an appropriate argument when he contends that it told the jury that the railroad was excused from giving the statutory signals if the presence of the approaching train could have been discovered by other means. This really says that, as a matter of law, one who is negligent in failing to discover the approach of a train to a crossing is at least as negligent as the train crew who failed to give the signals required by statute. I do not believe that this is the law. If it is, it certainly puts operators of railroads in a legal position not enjoyed by anyone else.

In considering this question, it is necessary that attention be given to the evolution of rules pertaining to the relationship between failure of a train crew to give the required signals and crossing collisions. The rule which the circuit court applied through the questioned instruction originated in cases where the crossing was blocked by a train at the time of the collision or the injured party otherwise knew that the train was approaching the crossing. One of the earliest cases was St. Louis & S. F. Ry. Co. v. Ferrell, 84 Ark. 270, 105 S. W. 263. In that case, the decedent knew the train was coming but stumbled and fell in the path of the train as he was running to cross the tracks. We found that the decedent’s guilt of contributory negligence would defeat the action by decedent’s administratrix. We also said that where there was knowledge of the coming of the train, signals ceased to be factors. We held that the case was improperly submitted to the jury. No question of instructions was involved. See also, C. R. I. & P. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S. W. 2d 175; Missouri Pac. R. Co. v. Moore, 199 Ark. 1035, 138 S. W. 2d 384; Missouri Pac. R. Co. v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856; Kansas City Southern Ry. Co. v. Baker, 233 Ark. 610, 346 S. W. 2d 215; Chicago, R. I. & P. R. Co. v. Gipson, 246 Ark. 296, 439 S. W. 2d 931.

There followed a line of cases in which we held that there was no jury question when the train was obviously blocking the crossing at the time of the collision, because the failure to give signals could not have been the proximate cause of injuries and damages to one seeking to cross the tracks at the time. See Missouri Pac. R. Co. v. Price, 182 Ark. 801, 33 S. W. 2d 366; Kansas City Southern Ry. Co. v. Briggs, 193 Ark. 311, 99 S. W. 2d 579; C. R. I. & P. Ry. Co. v. Sullivan, supra; St. Louis Southwestern Railway Co. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282.

Then came Missouri Pac. R. Co. v. Brewer, 193 Ark. 754, 102 S. W. 2d 538, in which grant of a new trial after a verdict in favor of the railroad was reversed with a 4-3 division of the court. We pointed out that the trial judge had overlooked certain phases of the case and had based his granting of the motion on his view that a preponderance of the evidence established a failure of the railroad to keep a lookout. We found this position unwarranted because the evidence on the point was undisputed, but proceeded to conclude that the jury verdict was based upon comparison of the negligence of the parties. We found the appellee’s testimony that he stopped 20 to 25 feet short of the crossing where his view was unobstructed, looked and listened and then proceeded into the path of a train approaching at 40 miles per hour with headlight burning was completely refuted by the physical facts. We said that notice of the approaching train would have been apparent to any ordinary person and that the conclusion that appellee neither looked nor listened was inescapable. Such cases as Missouri Pac. R. Co. v. Sanders, 193 Ark. 1099, 106 S. W. 2d 182 followed. In Sanders, we found that a verdict should have been directed for the railroad company. The reason given was that the conclusion that the negligence of appellee’s intestate was the proximate cause of the fatal injuries was inescapable. We found undisputed evidence that the whistle was being blown at a point 520 feet from the crossing when the train was in plain view of one driving an automobile along the route taken by appellee’s decedent and that the view of the tracks was obstructed at only one point along the path taken by the decedent, after which they were again in plain view. We said that under these circumstances the collision would not have occurred if the driver and his passenger had been, taking the slightest precaution .for their own safety.

Later we found questions for the jury as to negligence and contributory negligence under other circumstances. In one of them, Missouri Pac. R. Co. v. Lemons, 198 Ark. 1, 127 S. W. 2d 120, Brewer was distinguished on the basis pointed out above. In that case there was a recovery by one whose truck was struck while stalled on the railroad crossing. I find the following pertinent language in that opinion:

# * # Qn thg other hand, the traveler has a right to assume that the trainmen will not be guilty of negligence and that they will perform the duties imposed upon the railroad company by law. They have a right to assume that there will be a bell rung or whistle sounded before the train reaches the crossing, unless they know that it is not giving the alarms.

In another such case, where we indicated that contributory negligence would have barred recovery for property damage, we said that one approaching a crossing where the view was obscured until he reached a point 15 or 20 feet from the track, who did not know when the train was due, had a right to assume that the railroad company would not be guilty of negligence in failing to give the signals required by statute, even though he used the crossing two or three times per month and had looked for a train in both directions as he approached the crossing. Missouri Pac. R. Co. v. Howell, 198 Ark. 956, 132 S. W. 2d 176.

Then came the decision in which we find statements which may have helped to spawn later opinions, the language of which might seem to lend support to the instruction given in the case before us. In Missouri Pac. R. Co. v. Hood, 199 Ark. 520, 135 S. W. 2d 329, we reversed a judgment against the railroad company and dismissed the case. We said that the record was without substantial dispute that the whistle was sounded at each of three crossings. The injured truck driver did not say that the statutory signals were not given and every other witness who gave any attention to the signals testified that they were. The plaintiff actually struck the rear of the engine cab 45 feet from the front of the train, even though he testified that he looked for trains in both directions before driving onto the main line track without seeing the train approaching with its headlight burning or hearing any signal. There were no obstructions to his view. We came to the conclusion that the plaintiff either failed to look in the direction from which the train came, or that he looked and saw the headlight just as everyone else did. We based our holding upon the premise that one whose faculties were sufficiently normal to drive a truck in traffic and upon railroad crossings must be regarded as having seen what others saw, hearing what others heard, and observing what others observed, when they occupied a position relatively the same as that occupied By him. Under these circumstances it was held that the failure to give the statutory signals could not have been the proximate cause.

The same idea was expressed in holding a property damage claimant guilty of contributory (not comparative) negligence which would bar his recovery as a matter of law. Missouri Pac. R. Co. v. Cook, 203 Ark. 787, 158 S. W. 2d 699. We quoted from Chicago, Rock Island & Pacific Railroad Co. v. Batsel, 100 Ark. 526, 140 S. W. 726, as follows:

* * * “Where the undisputed evidence shows that the injured person by looking or listening had an opportunity to see and hear the approaching train before the time of the accident, and that his opportunity was such that he could not have failed to have seen or heard the train in time to have avoided the injury if he had used ordinary care in looking and listening, then, under the law, he will be deemed to have seen and heard the train, although he should testify that he looked and listened, and did not either hear or see the train. Under such circumstances, the traveler ‘is deemed to have seen or heard what is plainly to be seen or heard.’ * * * Such a doctrine was applied in cases where it was broad daylight, and the engine or train in plain view, and could unquestionably have been seen if the traveler had looked in the direction whence it came.”

This proposition was repeated in Missouri Pac. R. Co. v. Dennis, 205 Ark. 28, 166 S. W. 2d 886. It is significant that we have a case in which comparative negligence is the test, and that the court in Cook did not say that the railroad company was not guilty of any negligence.

Yet, we did find negligence of an automobile driver (whose personal injuries were said to be doubtful) to exceed that of the railroad, even if it were conceded that the statutory signals were not given in Missouri Pac. R. Co. v. Howard, 204 Ark. 253, 161 S. W. 2d 759. The negligence on the part of the driver was her failure to stop, look and listen before driving onto the crossing, when her view was obstructed to the south, from whence the train came. In this case we first find language bearing any real similarity to that of the instruction before us. We said:

* * * Had she stopped, before reaching the main line track, she could have heard the train and had she looked, after easing by the obstruction, she could have seen it. It was there, making a loud noise, whether the whistle was blown or the bell rung, and signals cease to be factors where the presence of the train is plainly discoverable by other means.

This language is also to be found in Missouri Pac. R. Co. v. Carruthers, 204 Ark. 419, 162 S. W. 2d 912, where the four-judge majority found that the presence of the train could have been detected had the driver used the slightest care. Once again, the court said that the deceased driver either saw and heard the signals and the noise of the train and thought he could beat it across or was preoccupied and failed to see and hear what was plainly to be seen and heard and what everyone else, including his own witnesses, saw and heard.

It seems difficult to reconcile the opinion in St. Louis S. F. Ry. Co. v. Perryman, 213 Ark. 550, 211 S. W. 2d 647, with some of the preceding cases, and I do not think that it can be reconciled with the instruction we are considering. The appellant there relied upon Hood, Dennis and Doyle, among other cases, but we found that there was substantial evidence’ to present a jüry question whether or not the failure of the railroad to give the statutory signals was the cause of the collision. We also held that the comparison of the negligence of the occupants of the car was for the jury, even though it is clear from a reading of the opinion that if they had stopped, looked and listened, they could have avoided striking the engine, as they did. We stated the question thus: Did the boys see and hear the train, or know of its approach so as to make the statutory signals unnecessary?

In order to harmonize these decisions, it seems to me that we must say that, when comparative negligence is involved in a crossing collision case, the failure of a train crew to give the statutory signals ceases to be a factor only when the presence or approach of the train was known by other means to one alleging this failure as a basis for recovery or was so obvious that the claimant cannot be heard to say that he was unaware of it. Otherwise, it seems to me that the jury is to determine proximate cause and compare the negligence.

The instruction given, however, would tell the jury, in effect, that the failure to give the signals required by statute could not be relevant if the presence or approach of the train could have been discovered by the deceased through the exercise of ordináry care on his part. I do not believe that this is the law.

      This case was soon distinguished from one where there was at least a question of fact whether one walking across railroad tracks knew that the train was approaching. Chicago, R. I. & P. Ry. Co. v. Elzen, 132 Ark. 431, 200 S. W. 1000.

      This case was distinguished in Missouri Pac. R. Co. v. Powell, 196 Ark. 834, 120 S. W. 2d 349, where we found a jury question when an auto struck a train which may not have been occupying the crossing when the automobile approached.

      This case was, along with others hereinafter cited, also distinguished in Chicago, R. I. & P. R. Co. v. Sparks, 220 Ark. 412, 248 S. W. 2d 371, where a jury question was found on only slightly different evidence.

      These cases were also distinguished in Missouri Pac. R. Co. v. Powell, 196 Ark. 834, 120 S. W. 2d 349, even though the auto in that case struck the side of the train.

      This case was distinguished in the opinion on rehearing in Missouri Pac. R. Co. v. Diffee, 212 Ark. 55, 65, 205 S. W. 2d 458, on the basis that in Howard, the court found that there was not a question of fact as to which party was more negligent, but on the other hand the court found a jury question on substantial evidence as to proximate cause. This case and
        Doyle are also distinguished in Chicago, R. I. & Pac. R. Co. v. Sparks, Admr., 220 Ark. 412, 248 S. W. 2d 371. I find it difficult to see the distinction. In either case, it might readily be said that the driver clearly should have seen the train by which he was struck. In Sparks, we said that it might be conceded that if the deceased had stopped and looked or had just looked while approaching the crossing he would have been able to see the train in time to avoid the collision.