AMI 1804 Railroads—Grade Crossings—Duty of Motorist to Look and Listen

Do not use the bracketed paragraph of AMI 901B with this instruction. In most railroad grade crossing cases one or more of the remaining paragraphs of AMI 901 will apply.

A statutory duty to stop is imposed upon certain types of vehicles and under certain circumstances. For instance, see Ark. Code Ann. §§ 27-51-703 to 27-51-705. In some cases it may be proper to use both this instruction, which embodies the duty imposed by common law, and AMI 903 with the incorporation of the proper statutory duty.

This instruction is based on Missouri Pac. R. Co. v. Binkley, 208 Ark. 933, 188 S.W.2d 291 (1945) (citing cases). It is the duty of the driver before driving onto a crossing, a known place of danger, to look and listen for an oncoming train, and if he could not see whether a train was coming, to stop his car or to place himself in such a position that he could have seen an approaching train. Failure to exercise this precaution may constitute contributory negligence and bar recovery. Id. Negligence of the injured party will not wholly defeat a recovery of damages, if the negligence is of a lesser degree than the operators of the train. See Missouri Pac. R. Co. v. King, 200 Ark. 1066, 143 S.W.2d 55 (1940).

This instruction does not apply to passengers in a motor vehicle. St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977).

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.