AMI 1802 Duty of Railroad to Keep Lookout

When negligence on the part of plaintiff or decedent is an issue the appropriate comparative fault instruction must be given. See AMI, Chapter 21.

This instruction is based on Ark. Code Ann. § 23-12-907.

Prior to 1961 the negligence of plaintiff or decedent was not a defense to a violation of the lookout statute by its own terms. Nor did the general comparative negligence statute apply to its violation. Bond v. Missouri Pac. R. Co., 233 Ark. 32, 342 S.W.2d 473 (1961). However, the statute was amended in 1961 to include the comparative negligence concept and place violations of the lookout statute on a parity with other negligence actions. Ark. Code Ann. § 23-12-907. Under this amendment, the fact that a crossing accident occurs no longer creates a presumption of negligence on the part of the railroad company.

Under this statute the duty is owed to trespassers and licensees as well as invitees. Missouri Pac. R. Co. v. Fikes, 211 Ark. 256, 200 S.W.2d 97 (1947).

The statutory language “upon the track” means in addition “near or approaching the track.” Missouri Pac. R. Co. v. Greene, 177 Ark. 217, 6 S.W.2d 26 (1928).

In regard to the second paragraph of this instruction, see Missouri Pac. R. Co. v. Edwards, 178 Ark. 732, 14 S.W.2d 230 (1928).

It was error to give this instruction when trainmen were keeping a lookout and the train could not have been stopped in time to avoid the collision after it became apparent that the driver of the car was not going to stop before crossing the tracks. St. Louis Southwestern Ry. Co. v. Evans, 254 Ark. 762, 497 S.W.2d 692 (1973).

In light of all the evidence, as well as all the instructions both given and requested, the trial court did not commit reversible error in giving the lookout instruction. Missouri Pac. R. Co. v. Ellison, 250 Ark. 160, 465 S.W.2d 85 (1971).

It was not error to refuse to give this instruction when the train crew was keeping a proper lookout and from a mile away saw the truck across the track moving slowly forward. The train crew had the right to assume that the truck driver would continue to move forward across the tracks, and the duty of the crew to take precautions began only when it became apparent that the truck driver would not get the truck off the tracks. Northland Ins. Co. v. Union Pac. R. Co., 309 Ark. 287, 830 S.W.2d 850 (1992).

The Eighth Circuit has held this instruction applicable to a private railroad. Wood v. Minnesota Mining and Mfg. Co., 112 F.3d 306 (8th Cir. 1997).

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.