St. Louis, Iron Mountain & Southern Railway Co. v. McCain

Citation55 S.W. 165,67 Ark. 377
PartiesST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MCCAIN
Decision Date27 January 1900
CourtSupreme Court of Arkansas

Appeal from Pulaski Circuit Court, Second Division, JOSEPH W MARTIN, Judge.

STATEMENT BY THE COURT.

The complaint charged that on March 16, 1897, plaintiff's intestate was employed by the defendant in its yards in North Little Rock as switchman; that on the night of said date he was run over and killed, while switching cars, by reason of the negligence and carelessness of defendant's employees in the handling of its trains and the incompetency of its servants, and in violation of its rules, and in consequence of the incompetent and unskillful engineer in charge of the engine being used at the time; that the said Epple left two children, 6 and 10 years of age, surviving him; that he was 30 years of age, earning about $ 60 per month at the time that his estate and next of kin were damaged in the sum of $ 25,000, for which plaintiff prayed judgment.

The answer denied each and every allegation of the complaint and, for its complete defense, set up that Chas. C. Epple was guilty of negligence and carelessness amounting to recklessness in going upon the track between two cars, and in so acting as to be the direct and sole cause of his death and that, had he not, by his own negligence, contributed to the same, the accident would not have happened.

After the jury had been impaneled, and the trial had commenced, the plaintiff asked leave to file an amendment to his amended complaint in which he charged: "That the foreman of defendant's switch crew, who were placing cars on said transfer track to be taken or hauled out on said Fort Smith road, negligently, carelessly and recklessly ordered the section of cars moved, which set said stationary cars in motion, to be kicked in or kicked in on said transfer track without any warning to plaintiff's intestate, Epple, and without taking any care or precaution to ascertain if any one was on the track, or to keep from setting in motion the stationary cars which ran over and killed the plaintiff's intestate, Epple; and by reason of such negligence and want of care on the part of such foreman the plaintiff's intestate was run over and mortally wounded, without any negligence on his part."

To the filing of this amendment to the amended complaint defendant objected, as setting up a new cause of action, and as coming too late and after the trial of the case had commenced. The court overruled the objections, and exceptions were properly saved by defendant.

Defendant then answered said amendment to the amended complaint, denying each of its allegations, and charging that the said Epple, at the time of the injury, was engaged in the yards at Little Rock as a switchman, switching cars in said yards; that one of the hazards, dangers and risks of said work was that of getting caught between cars while switching, and that said Epple assumed the risk at the time he entered into the employment of the company; that his death was an accident, without fault on the part of any of the employees of defendant, said accident growing out of the contributory negligence of the said Epple.

Dr. J. W. Jenkins testified that Chas. Epple, alias Culver, was brought to the Missouri Pacific Hospital on the night of March 16th; that he was cut open in the strike, and was very badly injured by the car wheels passing over him. He was in a dazed condition from the shock, and, although he lived about three hours, the shock was such that he did not suffer greatly on account of his injuries.

John Curry testified that he was a switchman, working with the switching crew of which the deceased was a member; that his crew was moving cars from the transfer track, while a switch engine and another crew were putting cars on the transfer track for his crew to move into another part of the yard; that his crew, with whom was deceased, backed down into the transfer track, then coupled up three cars; that he and deceased went across the track between the cars to the other track to look for links and pins. "I suppose Epple got what he wanted while I walked on down to look for more. I heard the lamp jingle, and I heard the deceased say, 'O, my God! I am killed!' I hollored to our engineer not to move, for fear they would shove in; ran for the foreman of the switching crew, Harry Nolan; and when I got back there were several men around Epple." Whenever switchmen want to get links, when they are not in the cars, as they generally are, they go and get them wherever they can find them. The track where the injury occurred was curved, and held about thirty-four cars. It was witness' and deceased's duty to couple the cars when they were backed down, and they were going to get the links for this purpose, and it was while Epple was returning across the track between the two cars that the came came together and caught him. It was somewhere about 9:30 o'clock at night--after dark. On cross-examination witness stated that the yardmaster that night was Con Curry, and had charge of both crews. These two crews were switching under the directions of the same night yardmaster, Con Curry; that his switch crew had pushed down on the van or transfer track for the purpose of moving cars. While the cars were standing there, he and deceased passed across the track between the two cars for the purpose of getting pins and links, and deceased had got his links and pins, he supposed, and while going back was caught between the two cars as they came together.

Harry Nolan testified that he was foreman of the switch crew in which John Curry and Epple were working; that Chas. Compton was switch foreman of the other crew. Compton's crew were pushing cars on the van or transfer track for witness' crew to take and distribute in the yards. In other words, they were transferring the cars from one part of the yards to the other, Compton's crew delivering the cars, and his (Nolan's) crew receiving them.

The record shows that about 9:30 on the night of March 16, 1897, Charles C. Epple was in the employ of the Iron Mountain Railway Company as a switchman, engaged at work in the Baring Cross yards. He had sought employment from defendant, and was working under the assumed name of Charles E. Culver. As such he had signed his application, and as such he was carried on the rolls. His divorced wife testified that the reason he had changed his name was because he had been in the American Railway Union strike of 1894; but, be this as it may, the deceased, on the night in question, formed one of the switching crew, working under the direction of Harry Nolan, foreman. Nolan's crew were at the time of the accident engaged in receiving cars from the van or transfer track, which were being placed there by another switching crew, working at the north end of the transfer track, under one Compton, foreman.

Just before deceased was injured, his particular crew had backed their engine up into the south end of the van or transfer track, and there coupled onto three cars and stopped. This engine and three cars were standing on the south end of the van or transfer track, the engine facing south with three cars attached to it. While this engine and the three cars were thus standing still, deceased and switchman Curry, a fellow switchman, crossed the track with their lighted lanterns in their hands, hunting for links and pins, which, it seems, they expected to need in making the coupling with the cars coming in on the north end of the transfer track. Curry saw deceased turn with his lantern and start back over the track, supposing he had found what links and pins he was after. Just as the deceased stepped between the iron rails, an empty coal car moved back and caught deceased between it and the three cars standing still, and killed him.

At the same time this was occurring, on the north end of the van or transfer track was another switching crew at work under switch foreman Compton. This crew was placing cars in and upon the transfer track for the purpose of enabling the crew of the deceased to take hold of them and move them to those points in the yard where needed. The track both crews were working on was known as the van or transfer track, where cars were placed for distribution about the yard. Compton's crew was delivering the cars on the van or transfer track, while Nolan's crew, with which the deceased was working, was receiving them on the van or transfer track, and distributing the cars in the yard. Thus it was, while Compton's crew was pushing eight or ten cars down on the transfer track, deceased attempted to cross between the cars, and was caught and killed."

The court gave ten instructions at the instance of the plaintiff, thirteen for defendant, and refused one asked for by the defendant. The defendant, at the close of the testimony, moved the court to instruct the jury to return a verdict for the defendant, which the court refused to do. The defendant excepted to the giving of the instructions for the plaintiff, and to the court's refusal to give the one for it numbered thirteen. The jury returned a verdict for five hundred dollars for the pain and suffering by the deceased caused by the injury, and twenty-five hundred dollars for pecuniary damages sustained by the children of the deceased, on account of his death. The defendant filed a motion for a new trial, which was overruled, to which it excepted and appealed.

Affirmed.

Dodge & Johnson, for appellant.

The evidence does not show any negligence on the part of appellant. 41 Neb. 860; 46 Ark. 567. The deceased assumed the risk of such contingencies as the one which caused his death. 35 Ark. 602; 46 Ark. 388; 56 Ark. 209; 116 N.Y. 398; 15 Am. & Eng. Ry. Cas. 257; 82 F. 789. If there was any...

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