AMI 1801 Railroads—Duty to Sound Bell or Whistle for Crossing

This instruction should be given in the format of AMI 903 when the evidence justifies its use.

This instruction is based on Ark. Code Ann. § 23-12-410, which has been paraphrased.

If a train occupies a grade crossing blocking the highway, it is not necessary for the train crew to continue signaling with a bell or whistle. Under these circumstances it would be error to give this instruction. St. Louis Southwestern Ry. Co. v. Robinson, 228 Ark. 418, 308 S.W.2d 282 (1957). This decision is in accord with Arkansas precedent, which holds that when the presence of a train approaching or occupying a crossing is readily discoverable by means other than lights, signals, or flagmen, then these become irrelevant factors since there is no causal relationship as a matter of law. See, i.e., Kansas City Southern Ry. Co. v. Baker, 233 Ark. 610, 346 S.W.2d 215 (1961) (the plaintiff cannot recover, even though no signals were given, because if she saw the train approaching and walked in front of it, there can be no recovery regardless of whether the statutory signals were sounded); Missouri Pac. R. Co. v. Dennis, 205 Ark. 28, 166 S.W.2d 886 (1942) (the fact that statutory signals were not given is not the proximate cause of the collision where the undisputed evidence shows that the claimant by looking or listening could have seen and heard the approaching train); Missouri Pac. R. Co. v. Carruthers, 204 Ark. 419, 162 S.W.2d 912 (1942) (the failure to blow a whistle or to turn on the headlight on the train cease to be factors, and no recovery may be had, where the presence of the train is plainly discoverable by other means such as the sound of the train, a ringing gong, and a wig-wag signal); and Missouri Pac. R. Co. v. Howard, 204 Ark. 253, 161 S.W.2d 759 (1942) (as the danger increases, the degree of care required to free one of contributory negligence in a crossing accident increases). However, this rule is not absolute, being qualified by the existence of hazardous or unusual conditions prevailing at the site of the crossing, and under certain circumstances the plaintiff may still be entitled to this instruction although the train is readily discoverable. St. Louis S.F. Ry. Co. v. Perryman, 213 Ark. 550, 211 S.W.2d 647 (1948).

See also Louisiana and North West R. Co. v. Willis, 289 Ark. 410, 711 S.W.2d 805 (1986), a case in which a locomotive was blocking only a portion of the highway with its headlight angling away from the direction of highway travel.

Because of the extent and possible preemptive effect of federal regulation of railroads, the United States Code and the Code of Federal Regulations should always be considered in railroad cases.