Central Coal & Coke Co. v. Fitzgerald
| Decision Date | 15 November 1920 |
| Docket Number | 243 |
| Citation | 225 S.W. 433,146 Ark. 109 |
| Parties | CENTRAL COAL & COKE COMPANY v. FITZGERALD |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Greenwood District; John Brizzolara, Judge; affirmed.
Judgment affirmed.
James B. McDonough, for appellants.
1. The evidence is insufficient to show that any negligence of defendants caused the accident. 89 Ark. 581; 100 Id 53; 86 Id. 289. The scintilla doctrine as to evidence does not prevail now in Arkansas. 114 Ark. 112.
2. It was an accident for which appellants were not liable. 116 Ark. 82. Verdicts can not be predicated upon conjecture. 113 Ark. 353; 116 Id. 82; 174 S.W. 574. See, also, 116 Ark. 82; 154 N.Y. 90; 136 Id. 423; 101 Id 661; 64 Kan. 553; 74 Iowa 248; Elliott on Ev., § 89; 179 U.S. 658; 181 F. 91; 190 Id. 717.
Negligence must be proved and not presumed. 100 Ark. 462; 79 Id. 608. The operators of the train owed no duty to Morfew under the circumstances here, for he suddenly stepped in front of a moving car or train. 95 S.E. 311. No notice was necessary or warning, as Morfew was an employee and he had knowledge of the risk and danger. 29 Okla. 351; 187 Mass 549; 96 Ark. 500; 174 S.W. 150; 107 Ark. 341. Inferences can not be built upon inferences or verdicts supported in that manner. 219 F. 686. Actually there is no testimony showing negligence of appellants and the burden was on them. 116 Ark. 82.
3. The court should have given a peremptory instruction for defendants, as there was no evidence of negligence.
4. The court erred in its instructions. 130 Ark. 583.
5. It was error to admit the evidence of Doctors Butler and Howard, giving their opinions as to the cause of death. 206 F. 765; 86 N.E. 606; 95 Kan. 451; 151 S.W. 950. It was also error to admit the testimony of Mrs. Morfew as to conversations with her husband. 116 Ark. 555; 88 Id. 168; 115 Id. 584.
6. The verdict is excessive.
John W. Goolsby, for appellee.
1. The moving car was the proximate cause of the injury. This was for the jury, and they have settled it. 86 Ark. 289.
2. There is no testimony that Morfew knew of any danger to which he was exposed, and no notice was given him, nor was the danger obvious. 75 Ark. 291; 96 Id. 206; 77 Id. 458; 106 Id. 25.
3. The doctrine of assumed risk does not apply here. 106 Ark. 25. The question of contributory negligence was submitted to the jury on proper instructions, and their verdict should not be disturbed.
The verdict is not excessive. He suffered greatly, and could not sleep or rest, and he left a widow and two minor children.
The Central Coal & Coke Company (hereinafter called company) owned and operated mine No. 11 in Sebastian County, Arkansas. It was a shaft mine. The coal, dirt and rock were drawn up in cars from the bottom of the shaft by steam power. The coal was brought up in separate cars from the rock and dirt. The mine had the usual tipple. There was a trestle built of wood on which ran the rock and dirt cars for the purpose of carrying away the rock and dirt from the tipple. This trestle started at the tipple and extended north for a distance of about eighty feet. At the tipple--the lowest point--the trestle was about ten or twelve feet high and it ascended at an angle of about twenty-five degrees. The place where the dirt car stood when not in use was at the lower end of the trestle next to the tipple. The dirt and rock were hoisted into a metal chute and were dumped from this chute into the rock and dirt car. This car ran on four wheels. It was six or seven feet long, three or four feet wide and about six feet high. It was a self-dumping car. After the rock and dirt were dumped from the metal chute into this car, the car was then pulled up the trestle by steam power. From two to four feet north of where the dirt car stood at the lower end of the trestle there was a stairway extending from the ground to the trestle. The steps of this stairway were about ten or twelve inches wide and two and a half feet long. When the cars loaded with rock and dirt were ready to be hoisted, the men working on top were notified by signal bells and by whistle that the cars were coming up. The whistle was on top and all working on top could hear the signal. The dumping of the rock and dirt into the metal chute and into the dirt car also made a great deal of noise, which could have been heard by a man working anywhere on the trestle.
J. A. Morfew had been an employee of the company at the mine for about two years and was familiar with the manner in which the mine was operated. It was his duty to perform any work required of him by the top foreman or any one having authority over him.
The rock, dirt, and small fragments of coal that had been dumped at the upper end of the trestle had accumulated in the shape of a cone sloping at an angle of about forty-five degrees until it was about forty feet high at its highest point. It had filled in under the trestle to such an extent that the trestle and track, for a part of the distance from the tipple to the top of the trestle, rested on the dump. The coal in the dump was burning nearly all the time, but persons could go from the ground to the trestle up the dump without getting into the fire. The most practical way, however, to reach the trestle was by the stairway which was erected for the purpose of getting up to the tipple and dirt car. In hauling and dumping the dirt it gets to the track of the trestle and sometimes over the track, and when it does, in order to further use the dirt car, it is necessary to remove the dirt.
A man by the name of Marshall Chamlee was in the employ of the company as "top boss," having direction of the men working on top. It was necessary for one going on top to work to notify the dirt engineer for the protection of the men. Chamlee had been requested by a carpenter, who had some work to do about the trestle, to send some one up to remove the dirt off the trestle, and in compliance with this request Chamlee directed Morfew to remove it. The dirt had accumulated over the track near the north end of the trestle, and Chamlee directed Morfew to get a shovel and remove the dirt so that it would not interfere with the dumping of the dirt and stop the production of coal. Morfew went for the shovel, and Chamlee went about his work at some other place. He was called into the hoist engine room. Morfew ascended the stairway. He was observed about half way up. At that time the dirt car was standing where the dirt is dumped into it from the chute. It was in plain view of Morfew. He was on the ladder or the trestle right at the car, and when the dirt car started up, he either fell or jumped or the car hit him. A witness who was observing the accident could not tell which. Morfew's thigh was broken, and he had cuts about the face. He lived about twelve days after the accident; suffered a great deal, and said he was going to die. In the opinion of the physician who attended him he died from embolus, or clot in the blood, caused from the injury. Morfew said to one who was among those first to reach him after his injury, that the "car knocked him off." Another who was present just after the injury told Morfew that he had two bad cuts on his face and asked him what caused them. Morfew said, "The rock car hit me." It was suggested to him that the cuts were too high for that and Morfew then said: "I don't know whether the rock car hit me or not."
This action was instituted by the appellee as administrator of the estate of Morfew against the company and Marshall Chamlee, appellants, to recover damages for the benefit of Morfew's widow and next of kin and of the estate of Morfew, alleged to have been caused by the negligence of appellants resulting in the death of Morfew.
The above are substantially the facts upon which the jury returned a verdict in favor of the appellee in the sum of $ 5,000. Judgment was rendered for that sum, from which is this appeal.
It could serve no useful purpose to set out in detail and discuss the instructions which were given by the court and the prayers of appellants for instructions which were refused. The rulings of the court in giving and refusing prayers for instructions correctly announce the law applicable to the facts of this record in accord with many previous decisions of this court on the issues of negligence contributory negligence and assumed risk. One of the grounds urged for reversal by appellants is that there is no substantial testimony to show any negligence on the part of the appellants in causing the injury to Morfew; that the...
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