Ark. Code Ann. § 23-12-907 (2026)

Case Notes

Purpose.

The original lookout statute was to overcome cases which held that the railroad company was under no duty to keep a lookout for trespassers. Bond v. Missouri Pac. R.R., 233 Ark. 32, 342 S.W.2d 473 (1961).

Applicability.

The lookout statute has no application to a case where the plaintiff, a passenger, was injured while attempting to board a passenger train after the same had stopped. Dillahunty v. Chicago, Rock Island & Pac. Ry., 119 Ark. 392, 178 S.W. 420 (1915).

Section applies in case of damage to personal property as well as to personal injuries. Huff v. Missouri Pac. R.R., 170 Ark. 665, 280 S.W. 648 (1926); Missouri Pac. R.R. v. Williams, 180 Ark. 453, 21 S.W.2d 858 (1929).

Section has no application in an action for the wrongful death of an employee under the Federal Employers' Liability Act. Missouri Pac. R.R. v. Skipper, 174 Ark. 1083, 298 S.W. 849 (1927), cert. denied, 276 U.S. 629, 48 S. Ct. 322, 72 L. Ed. 740 (1928).

This section applies not only to public railroads involved in interstate commerce but also to private railroads operating on their own premises. Wood v. Minnesota Mining & Mfg. Co., 112 F.3d 306 (8th Cir. 1997).

Burden of Proof.

It is the duty of railroad companies to keep a lookout for stock on a track and the burden is on it to show that such lookout was kept. Prescott & Nw. Ry. v. Brown, 74 Ark. 606, 86 S.W. 809 (1905).

Plaintiffs in action against railroad for injuries and death resulting from collision at crossing are not required to establish by a preponderance of the evidence that the accident was wholly a result of defendant's negligence. Missouri Pac. R.R. v. Creekmore, 193 Ark. 722, 102 S.W.2d 553 (1937).

Where the railroad offered the testimony of the engineer, saying he did keep a lookout and there was no substantial evidence to the contrary, the burden of proof of a lookout was established. St. Louis-S.F. Ry. v. Thurman, 213 Ark. 840, 213 S.W.2d 362 (1948).

Where evidence showed conclusively that railroad's employees maintained a constant lookout in accordance with this section and there was no substantial evidence in the record to the contrary, the burden of proof on the railroad was discharged, and the court erred in submitting the case to the jury. St. Louis-S.F. Ry. v. Spencer, 231 Ark. 221, 328 S.W.2d 858 (1959).

The burden of proof is upon a railroad company to establish that the duty to keep a constant lookout has been performed. Overstreet v. Missouri Pac. R.R., 195 F. Supp. 542 (W.D. Ark. 1961).

Contributory Negligence.

Contributory negligence was a defense to actions under this section. St. Louis, Iron Mountain & S. Ry. v. Tucka, 95 Ark. 190, 129 S.W. 541 (1910); St. Louis Sw. Ry. v. Adams, 98 Ark. 222, 135 S.W. 814 (1911).

The duty of either a traveler or trespasser to exercise care for his own safety when crossing railway tracks was not changed by 1911 amendment and contributory negligence on part of traveler or trespasser is still a valid defense unless, notwithstanding contributory negligence, operatives of train discover or in the exercise of ordinary care should discover the presence and peril of person injured in time to avoid injuring him. St. Louis Sw. Ry. v. Murphy, 125 Ark. 507, 188 S.W. 1180 (1916) (decision prior to 1961 (1st Ex. Sess.) reenactment and amendment).

Where, if the trainmen had kept a lookout they might have discovered the injured person's peril in time to have prevented the injury, contributory negligence of the injured person is no defense. St. Louis-S.F. Ry. v. Horn, 168 Ark. 191, 269 S.W. 576 (1925); Gregory v. Missouri Pac. R.R., 168 Ark. 469, 270 S.W. 621 (1925); Baldwin v. Brim, 192 Ark. 252, 91 S.W.2d 255 (1936); Missouri Pac. R.R. v. Nelson, 195 Ark. 883, 115 S.W.2d 872 (1938); Missouri Pac. R.R. v. Lemons, 198 Ark. 1, 127 S.W.2d 120 (1939); Missouri Pac. R.R. v. Eubanks, 200 Ark. 483, 139 S.W.2d 413 (1940) (preceding decisions prior to 1961 (1st Ex. Sess.) reenactment and amendment).

Section abolishes contributory negligence as a defense to a failure to comply with its provisions and such a defense has no place under the doctrine of discovered peril. Missouri Pac. R.R. v. Barham, 198 Ark. 158, 128 S.W.2d 353 (1939).

Evidence sufficient to find that contributory negligence was not a defense. St. Louis Sw. Ry. v. Brummett, 201 Ark. 53, 143 S.W.2d 555 (1940).

Contributory negligence of plaintiff does not bar recovery if court finds from substantial testimony that if a proper lookout had been kept by train operators, plaintiff's peril could have been discovered in time to have prevented the injury by the exercise of reasonable care after such discovery. Overstreet v. Missouri Pac. R.R., 195 F. Supp. 542 (W.D. Ark. 1961) (decision prior to 1961 (1st Ex. Sess.) reenactment and amendment).

In actions brought for recovery under this section, prior to amendment contributory negligence of the plaintiff could be pleaded as a defense by the railroad company; however, since the 1911 amendment, the Supreme Court has consistently held that contributory negligence was no defense to actions under the Lookout Statute. Bond v. Missouri Pac. R.R., 233 Ark. 32, 342 S.W.2d 473 (1961).

Duties of Railroad.

This section imposes liability not only in cases of discovered peril, but in those instances also where, by the exercise of reasonable care, the peril might have been discovered. Missouri Pac. R.R. v. Coca-Cola Bottling Co., 154 Ark. 413, 242 S.W. 813 (1922); Missouri Pac. R.R. v. Taylor, 200 Ark. 1, 137 S.W.2d 747 (1940); St. Louis-S.F. Ry. v. Beasley, 205 Ark. 688, 170 S.W.2d 667 (1943).

The duty of train operators to give warning of their approach and to keep a lookout for automobiles is equal with the duty of automobile operators to keep a lookout for trains upon approaching railroad tracks, which historically have been described by the courts as in themselves warnings of danger. Overstreet v. Missouri Pac. R.R., 195 F. Supp. 542 (W.D. Ark. 1961).

—Discovery of Peril.

A railway company would not be liable for personal injuries to a licensee upon its property when it appeared that the railway engineer saw the plaintiff in a place of safety, and the engineer will not be required to anticipate that the plaintiff was unaware of the approach of the train or that he would suddenly attempt to go upon the track. Todd v. St. Louis, Iron Mountain & S. Ry., 106 Ark. 390, 153 S.W. 602 (1913).

The duty of trainmen to take precautions begins when they discover that a traveler approaching the tracks will not act in a prudent manner. Blytheville, Leachville & Ark. S. Ry. v. Gessell, 158 Ark. 569, 250 S.W. 881 (1923); Missouri Pac. R.R. v. Ward, 195 Ark. 966, 115 S.W.2d 835 (1938).

There is no duty upon the part of train operative, when 1,500 feet away, even if they had seen railroadman walking on straight stretch of track, to assume that he would not step aside. Missouri Pac. R.R. v. Campbell, 200 Ark. 1056, 143 S.W.2d 9 (1940).

The operators of a train have the right to assume that a traveler approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in fact, stop before placing himself in peril and the duty of the railroad employees to take precaution begins only when it becomes apparent that the traveler at the crossing will not do so. Bond v. Missouri Pac. R.R., 233 Ark. 32, 342 S.W.2d 473 (1961).

Under this section, a member of a train crew keeping a lookout has the right to assume that an approaching motorist will stop instead of placing himself in a position of peril in the path of a moving train. Shibley v. St. Louis-S.F. Ry., 533 F.2d 1057 (8th Cir. 1976).

—Lookout.

The statutory requirement that railroads shall keep a constant lookout for persons and property upon their tracks applies to railroad switch yards as well as other places and is for the benefit of employees as well as others. Little Rock & Hot Springs W.R.R. v. McQueeney, 78 Ark. 22, 92 S.W. 1120 (1906); Kansas City S. Ry. v. Morris, 80 Ark. 528, 98 S.W. 363 (1906); St. Louis Sw. Ry. v. Graham, 83 Ark. 61, 102 S.W. 700 (1907); Fort Smith & W. Ry. v. Messek, 96 Ark. 243, 131 S.W. 686 (1910); Missouri Pac. R.R. v. Curcio, 164 Ark. 350, 261 S.W. 896 (1924).

The duty to keep a lookout for stock on the track is not imposed upon all the members of a train crew and may be discharged by a lookout kept by a single member of the crew, provided he is in a position to do so as effectively as another member of the crew. St. Louis Sw. Ry. v. Cone, 111 Ark. 309, 163 S.W. 1170, 163 S.W. 1170 (1914); Taylor v. St. Louis, Iron Mountain & S. Ry., 116 Ark. 47, 171 S.W. 1182 (1914).

This section includes the implied duty to equip the locomotive with a headlight sufficient to enable the engineer to keep a proper lookout. Chicago, Rock Island & Pac. Ry. v. Gunn, 112 Ark. 401, 166 S.W. 568 (1914).

This section casts upon trainmen the duty to use ordinary care to discover travelers or property on a highway approaching the train, whether they are upon the track or not. Bush v. Brewer, 136 Ark. 246, 206 S.W. 322 (1918).

It is the duty of the railroad company to keep an efficient lookout, and if the person on the train is so situated that it is impossible to ascertain whether persons are in danger of being hit by moving cars, it then becomes the duty of the company to keep such a lookout as would discover them. Kelly v. DeQueen & E.R.R., 174 Ark. 1000, 298 S.W. 347 (1927).

Though it is not necessary that both the engineer and the fireman keep a lookout, yet the railroad company is required to keep an efficient lookout on the train and whenever it would be useless for the engineer to do so, it is the duty of the fireman to keep a lookout. Missouri Pac. R.R. v. Edwards, 178 Ark. 732, 14 S.W.2d 230 (1928).

It is the duty of an engineer to keep a lookout at a railroad crossing, not only on the track, but also such as would enable him to see objects near or approaching the track. Missouri Pac. R.R. v. Greene, 177 Ark. 217, 6 S.W.2d 26 (1928).

Ordinarily the duty devolves particularly upon the engineer to keep the lookout, but where he is not in a position to keep an effective lookout, it is the duty of the fireman or other members of the crew to keep the lookout. Missouri Pac. R.R. v. Edwards, 178 Ark. 732, 14 S.W.2d 230 (1928); Southern Lumber Co. v. Thompson, 133 F. Supp. 92 (W.D. Ark. 1955).

It is the duty of the engineer and fireman to keep a lookout on the right-of-way as well as on the track ahead so as to enable them to see objects near, or approaching the track. Missouri Pac. R.R. v. Mobley, 192 Ark. 396, 91 S.W.2d 611 (1936).

Duty imposed by this section applies anywhere on the track and not at crossings only. Missouri Pac. R.R. v. Manion, 196 Ark. 981, 120 S.W.2d 715 (1938).

Under this section persons operating a train not only owe the duty to keep a lookout but if they discover a person on the track it then becomes their duty to exercise reasonable care not to injure him. Missouri Pac. R.R. v. Manion, 196 Ark. 981, 120 S.W.2d 715 (1938).

The fact that the drivers of two automobiles were negligent and caused a collision on the railroad crossing, did not excuse the railroad company from complying with this section. Bond v. Missouri Pac. R.R., 233 Ark. 32, 342 S.W.2d 473 (1961).

Testimony of the train's engineer that he could not see driver's van and he did not know that the train had struck the van until the brakeman brought it to his attention, demonstrated substantial evidence that the railroad was negligent in failing to keep a proper lookout. Union Pac. R.R. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997).

Elements of Action.

In order that a railroad company may be held liable for personal injuries to a person on its track, the jury must find that the railroad's employees by exercising ordinary care saw or could have seen that the plaintiff was in a perilous position in time to have avoided injuring him. St. Louis, Iron Mountain & S. Ry. v. McMichael, 115 Ark. 101, 171 S.W. 115 (1914).

Where a trespasser is killed on a railroad track, there is no presumption of negligence on the part of the railroad but the plaintiff must show a failure to keep a lookout and that if a proper lookout had been kept the railroad could by the exercise of reasonable care have avoided the injury. St. Louis, Iron Mountain & S. Ry. v. Spillers, 117 Ark. 483, 175 S.W. 517 (1915); Baldwin v. Clark, 189 Ark. 1140, 76 S.W.2d 967 (1934).

To make issuable case for jury under this section, plaintiff must establish that the injuries occurred by reason of the operation of a train, that injuries would not have occurred had a proper lookout been kept, and, had such lookout been kept, the peril of the injured party could have, by the exercise of ordinary care, been discovered in time to have avoided the injury. Baldwin v. Brim, 192 Ark. 252, 91 S.W.2d 255 (1936).

In order for one to recover damages he must prove facts and circumstances from which the jury might reasonably infer that the danger might have been discovered and the injury avoided if an efficient lookout had been kept and the burden to make such proof rests upon the party seeking to recover. St. Louis-S.F. Ry. v. Sheppard, 194 Ark. 619, 109 S.W.2d 109 (1937); Missouri Pac. R.R. v. Maxwell, 194 Ark. 938, 109 S.W.2d 1254 (1937).

The finding of an injured body or damaged property, in circumstances justifying a belief that such injury or damage was caused by a train, is not sufficient, alone, to fix liability, but there must be evidence that if a proper lookout had been kept the presence of deceased in a perilous position on or near the track could have been discovered in time to prevent the killing. Missouri Pac. R.R. v. Ross, 194 Ark. 877, 109 S.W.2d 1246 (1937); Missouri Pac. R.R. v. Severe, 202 Ark. 277, 150 S.W.2d 42 (1941); St. Louis-S.F. Ry. v. Gilstrap, 206 Ark. 297, 174 S.W.2d 941 (1943).

Evidence.

For cases discussing sufficiency of evidence in particular circumstances, see St. Louis, Iron Mountain & S. Ry. v. Rhoden, 93 Ark. 29, 123 S.W. 798 (1909); Chicago, Rock Island & Pac. Ry. v. Jones, 124 Ark. 523, 187 S.W. 436 (1916); Bush v. Brewer, 136 Ark. 246, 206 S.W. 322 (1918); Davis v. Scott, 151 Ark. 34, 235 S.W. 407 (1921); St. Louis-S.F. Ry. v. Williams, 180 Ark. 413, 21 S.W.2d 611 (1929); Missouri Pac. R.R. v. Grady, 188 Ark. 302, 65 S.W.2d 539 (1933); St. Louis-S.F. Ry. v. Pace, 193 Ark. 484, 101 S.W.2d 447 (1937); St. Louis-S.F. Ry. v. Brunner, 193 Ark. 937, 104 S.W.2d 214 (1937); St. Louis-S.F. Ry. v. Sheppard, 194 Ark. 619, 109 S.W.2d 109 (1937); Missouri Pac. R.R. v. Maxwell, 194 Ark. 938, 109 S.W.2d 1254 (1937); Missouri Pac. R.R. v. Thompson, 195 Ark. 665, 113 S.W.2d 720 (1938), overruled in part, Missouri Pac. R.R. v. Vaughan, 225 Ark. 848, 286 S.W.2d 6 (1956); St. Louis-S.F. Ry. v. Hill, 197 Ark. 53, 121 S.W.2d 869 (1938); Missouri Pac. R.R. v. Hood, 199 Ark. 520, 135 S.W.2d 329 (1939); Missouri Pac. R.R. v. Taylor, 200 Ark. 1, 137 S.W.2d 747 (1940); Missouri Pac. R.R. v. Campbell, 200 Ark. 1056, 143 S.W.2d 9 (1940); Missouri Pac. R.R. v. Merrell, 200 Ark. 1061, 143 S.W.2d 51 (1940); Kansas City S. Ry. v. Boyd, 201 Ark. 696, 146 S.W.2d 535 (1941); Missouri Pac. R.R. v. Severe, 202 Ark. 277, 150 S.W.2d 42 (1941); St. Louis-S.F. Ry. v. Beasley, 205 Ark. 688, 170 S.W.2d 667 (1943); Missouri Pac. R.R. v. Magness, 206 Ark. 1081, 178 S.W.2d 493 (1944); Chicago, Rock Island & Pac. Ry. v. Caple, 207 Ark. 52, 179 S.W.2d 151 (1944); Thompson v. Boswell, 166 F.2d 106 (6th Cir. 1948); Haney v. Missouri Pac. R.R., 214 Ark. 673, 217 S.W.2d 610 (1949); Southern Lumber Co. v. Thompson, 133 F. Supp. 92 (W.D. Ark. 1955); Kansas City S. Ry. v. Shane, 225 Ark. 80, 279 S.W.2d 284 (1955); Missouri Pac. R.R. v. Vaughan, 225 Ark. 848, 286 S.W.2d 6 (1956); Wagnon v. Kansas City S. Ry., 204 F. Supp. 234 (W.D. Ark. 1962); Sherman v. Missouri Pac. R.R., 238 Ark. 554, 383 S.W.2d 881 (1964); Commercial Nat'l Bank v. Missouri Pac. R.R., 631 F.2d 563 (8th Cir. 1980).

An engineer's employment does not carry with it authority to make admissions, subsequent to the injury, as to how the accident happened which are binding on the company. St. Louis-S.F. Ry. v. Vernon, 162 Ark. 226, 258 S.W. 126 (1924).

The jury may not capriciously disregard testimony of engineer and fireman as to lights and lookout contradicted only by inferences based upon speculation. Missouri Pac. R.R. v. Ross, 194 Ark. 877, 109 S.W.2d 1246 (1937).

Credibility of witness who testified as to distance within which operators could have stopped train which struck and killed person on tracks was for the jury. Missouri Pac. R.R. v. Vaughan, 225 Ark. 848, 286 S.W.2d 6 (1956).

A court cannot arbitrarily disregard the testimony of either the engineer or the fireman to the effect that they were keeping a proper lookout under this section, and their testimony must be accepted unless contradicted by other credible evidence, direct or circumstantial. Overstreet v. Missouri Pac. R.R., 195 F. Supp. 542 (W.D. Ark. 1961).

Instructions.

For discussion of instructions in cases brought under this section, see Louisiana & Ark. Ry., 127 Ark. 323, 192 S.W. 174 (1917); Kansas City S. Ry. v. Whitley, 139 Ark. 255, 213 S.W. 369 (1919); Hines v. Meador, 145 Ark. 356, 224 S.W. 742 (1920); Baldwin v. Brim, 192 Ark. 252, 91 S.W.2d 255 (1936); St. Louis Sw. Ry. v. White, 192 Ark. 350, 91 S.W.2d 277 (1936); St. Louis-S.F. Ry. v. Call, 197 Ark. 225, 122 S.W.2d 178 (1938); Missouri Pac. R.R. v. Byrd, 206 Ark. 369, 175 S.W.2d 564 (1943); Chicago, Rock Island & Pac. Ry. v. Caple, 207 Ark. 52, 179 S.W.2d 151 (1944); Missouri Pac. R.R. v. Frye, 214 Ark. 92, 214 S.W.2d 495 (1948); St. Louis-S.F. Ry. v. Willingham, 177 F.2d 167 (8th Cir. 1949); Missouri Pac. R.R. v. Vaughan, 225 Ark. 848, 286 S.W.2d 6 (1956); Bond v. Missouri Pac. R.R., 233 Ark. 32, 342 S.W.2d 473 (1961); Missouri Pac. R.R. v. Harelson, 238 Ark. 452, 382 S.W.2d 900 (1964); Shibley v. St. Louis-S.F. Ry., 533 F.2d 1057 (8th Cir. 1976).

Persons or Property Protected.

This section is not for the protection of coemployees while operating trains. Choctaw, Okla. & Gulf R.R. v. Doughty, 77 Ark. 1, 91 S.W. 768 (1905); Fletcher v. Freeman-Smith Lumber Co., 98 Ark. 202, 135 S.W. 827 (1911).

The operatives of a railway train are required to keep a lookout for trespassers and all others upon its tracks and is liable for any negligence resulting in an injury to such person, notwithstanding the contributory negligence of the injured party. Chicago, Rock Island & Pac. Ry. v. Bryant, 110 Ark. 444, 162 S.W. 51 (1913).

Where plaintiff, an employee of the defendant railway company, who had nothing to do with the operation of its trains was struck by a moving train and was injured, it was the defendant's duty to keep a constant lookout for persons upon its track and the burden was on the defendant to show that a constant lookout was maintained. St. Louis, Iron Mountain & S. Ry. v. Staples, 111 Ark. 129, 163 S.W. 514 (1914).

Where a railroad company permits camp cars for workmen to be so placed that the workmen must necessarily use the railroad tracks in going to and from the camp cars, the workmen so using the tracks are not trespassers and the railroad company owes them the statutory duty of keeping an efficient lookout. St. Louis, Iron Mountain & S. Ry. v. Drumright, 112 Ark. 452, 166 S.W. 938 (1914).

A railroad company is required to maintain a lookout for persons on its track and it will be liable for an injury to a drunken trespasser if its servants could have discovered his peril by the keeping of a proper lookout in time to have avoided injuring him. St. Louis, Iron Mountain & S. Ry v. Elrod, 116 Ark. 514, 173 S.W. 836 (1915).

Where deceased, a brakeman, received fatal injuries when the engine upon which he was riding collided with a moving engine of another railway company, the case was covered by the lookout statute and such other railway company was liable, it appearing that the operatives of its engine failed to maintain the lookout for danger required by the statute and that the accident could have been averted if a proper lookout had been kept. Chicago, Rock Island & Pac. Ry. v. Scott, 123 Ark. 94, 184 S.W. 65 (1916).

It is the duty of persons running trains upon any railroad to keep a lookout for dead persons lying on the track, as well as for other persons or property. St. Louis Sw. Ry. v. White, 192 Ark. 350, 91 S.W.2d 277 (1936).

That person killed while attempting to cross switch track by crawling under refrigerator car was a trespasser and guilty of negligence would not prevent recovery under this section. St. Louis-S.F. Ry. v. Sheppard, 194 Ark. 619, 109 S.W.2d 109 (1937).

Injured party may recover all the damages resulting from failure to keep a lookout notwithstanding contributory negligence even if injured party was a trespasser. Missouri Pac. R.R. v. Manion, 196 Ark. 981, 120 S.W.2d 715 (1938).

This section is intended to afford protection to those who might unwittingly, though carelessly or negligently, enter upon danger zones at or near railroad tracks and particularly at intersections or grade crossings and even trespassers are protected by it. Missouri Pac. R.R. v. Nelson, 195 Ark. 883, 115 S.W.2d 872 (1938).

Child, in walking along the railroad tracks, is at most a licensee and the duty that the operatives of a train owe her are measured by this section. Chicago, Rock Island & Pac. Ry. v. Caple, 207 Ark. 52, 179 S.W.2d 151 (1944).

The fact that a person was a trespasser or licensee at the time he was struck and killed did not bar recovery when there was evidence that the danger could have been discovered and death averted by the trainman had a proper lookout been kept. Missouri Pac. R.R. v. Fikes, 211 Ark. 256, 200 S.W.2d 97 (1947).

Pleading.

Though allegations did not in specific words allege a violation of this section, but facts were alleged sufficient to establish that action was based upon its violation, allegations were sufficient to state cause of action under this section. Missouri Pac. R.R. v. Barham, 198 Ark. 158, 128 S.W.2d 353 (1939).

Presumptions and Prima Facie Evidence.

When the plaintiff has proved facts and circumstances from which the jury might infer that his property has been injured on account of the operation of a train and that the danger might have been discovered and injury avoided if a lookout had been kept, then he had made out a prima facie case and the burden was on the defendant to show that a lookout was kept as required by this section. Central Ry. v. Lindley, 105 Ark. 294, 151 S.W. 246 (1912); St. Louis, Iron Mountain & S. Ry. v. Gibson, 107 Ark. 431, 155 S.W. 510 (1913); St. Louis, Iron Mountain & S. Ry. v. Gibson, 113 Ark. 417, 168 S.W. 1129 (1914) (preceding decisions prior to 1961 (1st Ex. Sess.) reenactment and amendment).

If a person is killed while on the tracks of a railway by the running of a train and such person would not have been killed had the required lookout been kept, this section makes such failure to keep a lookout the proximate cause of the death, no matter by what cause or under what conditions the party killed may have been upon the tracks. St. Louis & S.F.R.R. v. Champion, 108 Ark. 326, 157 S.W. 408 (1913) (decision prior to 1961 (1st Ex. Sess.) reenactment and amendment).

Where a dog is killed by the operating of a train by actually coming in contact with it, the prima facie case of negligence thus made out is not changed by the lookout statute. Taylor v. St. Louis, Iron Mountain & S. Ry., 116 Ark. 47, 171 S.W. 1182 (1914).

Where there was nothing but conjecture as to the manner in which deceased was killed by the train and there was positive evidence that engineer and fireman were keeping a lookout, but neither of them saw the deceased nor was aware that they had struck him, it could not be conclusively presumed that deceased was walking on or near the track and that negligence alone was responsible for the fact that his presence was not discovered. Missouri Pac. R.R. v. Ross, 194 Ark. 877, 109 S.W.2d 1246 (1937).

Evidence that justifies a finding that deceased was killed by defendant's train raises a presumption of negligence and the burden is on the railroad company to show that a proper lookout was kept. St. Louis-S.F. Ry. v. Crick, 182 Ark. 312, 32 S.W.2d 815 (1930); Missouri Pac. R.R. v. Thompson, 195 Ark. 665, 113 S.W.2d 720 (1938), overruled in part, Missouri Pac. R.R. v. Vaughan, 225 Ark. 848, 286 S.W.2d 6 (1956) (preceding decisions prior to 1961 (1st Ex. Sess.) reenactment and amendment).

In action for death against a railroad company where body was found outside the rails in such condition that reasonable minds would agree death was caused by a train, absent direct evidence showing how the death occured, presumption arising from fact that body was found beside the railroad ended when railroad introduced evidence that lookout statute had not been violated. Missouri Pac. R.R. v. Penny, 200 Ark. 69, 137 S.W.2d 934 (1940) (decision prior to 1961 (1st Ex. Sess.) reenactment and amendment).

In action for death of trespasser whose body was found near or on the track, when testimony has been offered, sufficient to sustain a reasonable inference that the danger could have been discovered had the efficient lookout required by law been kept, the burden devolves upon the railroad company to show, by a preponderance of the evidence, that such a lookout had been kept. Missouri Pac. R.R. v. Severe, 202 Ark. 277, 150 S.W.2d 42 (1941); Missouri Pac. R.R. v. Radley, 209 Ark. 532, 191 S.W.2d 467 (1946) (preceding decisions prior to 1961 (1st Ex. Sess.) reenactment and amendment).

When an injury is caused by the operation of a railway train a prima facie case of negligence is made out against the company and the burden rests on the company to show that it was not guilty of such negligence. Kansas City S. Ry. v. Shane, 225 Ark. 80, 279 S.W.2d 284 (1955) (decision prior to 1961 (1st Ex. Sess.) reenactment and amendment).

The only effect of the inference of negligence created when injury is caused by operation of the train is to cast upon the railway company the duty of producing some evidence to the contrary and when that is done the inference is at an end and the question of negligence is one for the jury upon all the evidence. Kansas City S. Ry. v. Shane, 225 Ark. 80, 279 S.W.2d 284 (1955) (decision prior to 1961 (1st Ex. Sess.) reenactment and amendment).

Proximate Cause.

The evidence demonstrated that regardless of whether the train's crew kept a lookout the train could not have stopped in time or slowed enough to avoid the collision, therefore, the train crew's failure to keep a lookout was not the proximate cause of plaintiff's injuries. Lovett ex rel. Lovett v. Union Pac. R.R., 201 F.3d 1074 (8th Cir. 2000).

Right of Way.

Arkansas law does not require trains to yield the right of way to automobiles crossing the tracks at highway crossings. Overstreet v. Missouri Pac. R.R., 195 F. Supp. 542 (W.D. Ark. 1961).

Trains.

An engine and tender are a train. Fort Smith & W. Ry. v. Messek, 96 Ark. 243, 131 S.W. 686 (1910).

A motor car run by a railroad company for the purpose of carrying passengers over its line of railroad is a train within the meaning of the lookout statute. Central Ry. v. Lindley, 105 Ark. 294, 151 S.W. 246 (1912).

Section does not apply to handcars or motor driven handcars. St. Louis Sw. Ry. v. Mitchell, 115 Ark. 339, 171 S.W. 895 (1914); Missouri Pac. R.R. v. Jones, 182 Ark. 405, 31 S.W.2d 524 (1930).

Section does not apply to street railways. Bain v. Ft. Smith Light & Traction Co., 116 Ark. 125, 172 S.W. 843 (1915).

Section applies to interurban railways. Ft. Smith Light & Traction Co. v. Phillips, 136 Ark. 310, 206 S.W. 453 (1918).

Cited: St. Louis, Iron Mountain & S. Ry. v. Roddy, 110 Ark. 161, 161 S.W. 156 (1913); Harper v. Missouri Pac. R.R., 229 Ark. 348, 314 S.W.2d 696 (1958); Horace v. St. Louis Sw. R.R., 489 F.2d 632 (8th Cir. 1974); St. Louis Sw. Ry. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977); Missouri Pac. R.R. v. Star City Gravel Co., 452 F. Supp. 480 (E.D. Ark. 1978).