Aluminum Company of North America v. Ramsey

• Decision Date: 01 March 1909
• Citation: 117 S.W. 568,89 Ark. 522
• Parties: ALUMINUM COMPANY OF NORTH AMERICA v. RAMSEY
• Court: Arkansas Supreme Court

117 S.W. 568

89 Ark. 522

ALUMINUM COMPANY OF NORTH AMERICA v. RAMSEY

Supreme Court of Arkansas

March 1, 1909

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Saline Circuit Court; W. H. Evans, Judge; affirmed on remittitur.

STATEMENT BY THE COURT.

George M. Ramsey brought this action against the Aluminum Company of North America to recover damages for physical injuries alleged to have been received by him, while in the employment of said company, an account of the negligence of one of his fellow servants.

The defendant company answered, setting up contributory negligence on the part of the plaintiff as a defense to the action.

The Aluminum Company of North America is engaged in the mining of bauxite in Saline County, Arkansas, and in connection with its plant operates a narrow-guage railroad with a trackage of two miles, which is used for the purpose of hauling the ore from the mines to the drying shed. The equipment of the road consisted of one locomotive and about 80 tram cars. The roadbed was new, and the track in good shape at the time the accident in question happened. At the time of the trial in September, 1907, George M. Ramsey, the plaintiff, was nearly 23 years old. He commenced working for the company on the 31st day of August, 1906. He commenced to run the engine on the 22d of January, 1907, and continued to run it up to the time he was injured, which occurred on the 18th day of June 1907. The shed runs north and south. One track runs east and one northeast. The cars from the northeast track were placed in the shed by kicking them there. From the east track they were run in by means of a "flying switch." There was no "Y" or turntable. When the cars came from the Martin mine, they were run in the shed by means of the flying switch, and were unloaded there. The customary manner in making the flying switch is described as follows: The locomotive was in front of the cars, coming from the mines and when it arrived at a big cut about 200 yards from the switch, the engineer would blow the whistle. In response to this signal, two employees of the company would come out of the car sheds, go down along the track and jump on the moving cars to assist in bringing them in. One of them would jump on the engine to pull the pin for the flying switch when the engineer gave the signal. The switch was always left open, so that the engine could take the right-hand track, which led around to the end of the shed. After the engine passed the switch, the switch would be thrown so that the cars would take the left-hand track, which led into the shed to the ore bins. When in about 50 yards of the switch, the engineer would check the speed of the engine, and this would cause the coupling between the engine and the car next to it to slacken so that the pin could be pulled. The engineer would then increase the speed of the engine, so that it could pass the switch and get on the right-hand track ahead of the cars. When the engine reached the switch, the man on the engine with the engineer would jump off the engine and throw the switch in order to place the cars on the left-hand track leading to the sheds. The switchman would then jump on the moving cars to assist the brakeman in setting the brakes, so as to stop them at the ore bins. The engine was a small one, and had no tender. The train crew consisted of the engineer and a brakeman. Sometimes the brakeman pulled the pin to make the flying switch, but he usually rode on the rear end of the train of cars, so that if the train broke he would be in a better position to control the cars which had broken loose from the engine.

The accident happened on the second trip that had been made on the morning of its occurrence. The brakeman was riding on the rear end of the train, and the signal for the switchman to come to throw the switch was blown in the cut as usual. When the engine arrived at a point about 50 yards from the switch, the engineer pulled the pin to uncouple the cars from the locomotive. When the plaintiff got back on his feet after pulling the pin, and looked ahead, McLaughlin was walking up the track toward the engine about ten steps away, and Page was standing at the switch with his foot on the sill. McLaughlin and Page had come out of the shed for the purpose of throwing the switch and assisting the brakeman in stopping the cars at the ore bins in the shed. It was the duty of Page to throw the switch. The engine was about 40 yards ahead of the cars when it passed the switch. As it passed McLaughlin and Page, plaintiff said: "You come out here next time and pull this pin. We are in a hurry this morning. I don't want to pull the pin another time. I pulled it last time." They said: "All right." Plaintiff rolled the engine down to the road crossing and stepped off right behind it when it stopped. He grabbed the clinker hook and turned around. The cars were then within ten steps of the switch. Page was standing at the switch, but plaintiff did not notice whether the switch had been thrown or not. He was in a hurry, and had stepped down to attend to the fire in his engine. Just as he raised up, the cars ran into him, knocked him down and up against the engine. The cars were moving at the speed of 7 or 8 miles per hour. When the cars hit him, McLaughlin was four car lengths from the first car and Page was behind him at the switch. Plaintiff was both engineer and fireman. It was necessary for him to rake the fire and get out the clinkers to get up steam enough to move the engine back up the grade. He said that he could not do this work in any other position than that assumed by him at the time of the injury; that the work could not be done from the boiler because the platform from behind the end of it was only two feet wide, and the fire would burn him if he stood so close; and that, besides this, in standing on the platform he could not get the clinker hook down in the fire. That he could not do this work from either side of the engine because there was no opening into the fire box on either side, and that in consequence thereof he had to stand right in front of the door and in the middle of the track to do the work. The plaintiff gave the signal for the men to come out to throw the switch when he was about 200 yards from it, and it was his duty to direct when the flying switch was to be made. When he gave the signal, it was the duty of one of the men to pull the pin, and after the engine had passed the switch it was the duty of the other to throw the switch. Plaintiff relied upon Page to throw the switch. Plaintiff's leg was crushed so badly it had to be amputated.

The above is the substance of the testimony of the plaintiff detailing the circumstances relating to the injury.

On cross examination he stated that sometimes in making a flying switch you split the switch. That sometimes it happens that a piece of coal or wood will get into the switch and prevent its being thrown. That if he had looked a few seconds longer he could have seen whether the cars took the left-hand track, but that he could almost have the engine hot in that time, and that he was in a hurry.

On redirect examination he testified that the track on which he was injured was so curved that he could not tell, from where he was, whether the switch was open or shut. That the switch bar was small and flat on one side or the other as the switch is open or shut. That at the time of the injury he was absorbed in getting the engine ready to go back to the mine. That if there was a piece of coal in the switch the man at the switch could have told it better than he, and that if the switch failed to work he could have notified him of the fact by holloing to him, as he was only 5 or 6 car lengths away.

R. L. Page for the defendant testified:

"I am 23 years old, and reside at Bauxite, Arkansas, and work for the defendant. I have been at work for that company about one year. I was working for it when Ramsey was hurt. We always made a drop of the cars, or flying switch, when bringing ore from the Martin mine. The engine would pull the cars down, and then we would meet them. One of us was supposed to get on the cars and cut the engine off and ride the engine to the switch, the engine taking the right-hand track, drop off and turn the switch for the main line so that the cars would run on into the shed. Always two of us went out to meet the train. When it whistled on this occasion, Sam McLaughlin and I went out. I ran past the the switch stand and as the engine ran past me Ramsey said, "Bob, I want you to be here next time to pull this pin." I said: "All right, Houston, I will." That was about twenty yards from the switch stand. I ran east and caught the cars, getting on the fourth car, and McLaughlin caught on about four cars back of me. I was about twenty yards from the switch when the engine passed me, and proceeded to run east until I climbed on the cars. I was on the left-hand side of the track, the side the switch is on. I did not stop after leaving the switch. Mr. Pipkin, the shed foreman, sent us out, and we ran until we met the train. McLaughlin and I did not stop and sit on the coal box. There was no one at the switch to throw the switch after the engine passed. I could not have run ahead of the cars to throw the switch and the cars ran into siding. McLaughlin was on the opposite side of the track. Forrest Raper, the brakeman, was on the last car. I have never known of Ramsey pulling the pin himself on any other run. Before that it had been the custom for the engineer to stop and wait for us if we did not come out in time to pull the pin and throw the switch. The engine ran about twenty steps beyond the switch before it stopped, stopping on the road crossing.. The engine when it passed me was...