Chicago, Rock Island & Pacific Railway Co. v. Pratt

• Decision Date: 11 April 1910
• Citation: 127 S.W. 711,94 Ark. 430
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. PRATT
• Court: Arkansas Supreme Court

127 S.W. 711

94 Ark. 430

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. PRATT

Supreme Court of Arkansas

April 11, 1910

Appeal from Calhoun Circuit Court; George W. Hays, Judge; affirmed.

Judgment affirmed.

Thomas S. Buzbee and George B. Pugh, for appellant.

The court erred in refusing a continuance. 71 Ark. 197; 67 Ark 142. The evidence is not sufficient to support the verdict because it fails to show that the injured person was discovered in time to avoid the injury. 86 Ark. 306; 82 Ark 522; 79 Ark. 608; Id. 225; 72 Ark. 572; 61 Ark. 549.

Davis & Pace, for appellee.

The evidence is sufficient to support the verdict. 79 Ark. 621. It is for the jury to determine all disputed questions of fact. 67 Ark. 531; 65 Ark. 116; Id. 255; 67 Ark. 433. The verdict is not excessive. 19 Kan. 488; 81 Ia. 1; 89 Wis. 257; 51 Ill.App. 543; 63 Id. 172; 90 Ill. 142; 58 N.Y.S. 640; 83 Ga. 512.

OPINION

MCCULLOCH, C. J.

This is an action to recover damages for personal injuries sustained by the plaintiff on account of being struck by a moving switch engine operated by defendant's servants. The original complaint stated that plaintiff was employed as a car inspector in defendant's yards at Ruston, La., and that "the yardmaster in charge of the railroad yards of said corporation in the town of Ruston, State of Louisiana, was engaged in making a flying switch, in order to place certain cars on a certain sidetrack in said yards, and that, while so engaged in making said flying switch, he negligently and carelessly caused the engine attached to said cars to be run over plaintiff, knocking him to the ground, breaking two of his ribs and his right arm above the elbow, inflicting serious and painful wounds upon his head, his hips and back and his legs, and injuring plaintiff internally."

Defendant moved the court to require plaintiff to make his complaint more definite and certain by stating in what manner the yardmaster was negligent in making the flying switch, and by giving the name of the yardmaster, so that defendant could prepare its defense. Plaintiff then amended the complaint by inserting a further allegation as to the manner in which his injury occurred, as follows: "That plaintiff was standing upon the sidetrack, near to the switch, wholly unconscious of the fact that the engine was to be turned into the switch where he was standing, and that W. J. Horton, an agent and employee of said defendant, seeing him, and realizing his peril, failed to warn him, but carelessly and negligently, and without warning, suddenly threw the switch, running the engine upon the sidetrack, thereby negligently and carelessly causing the engine attached to said cars to be run over plaintiff, knocking him to the ground," etc.

Defendant then moved for a continuance, on the ground that the amendment completely changed the cause of action set forth in the complaint as originally filed, and that since the change defendant had had no opportunity to procure the attendance of witnesses. The motion was overruled, and defendant answered, denying the allegations of negligence. A trial resulted in a verdict in plaintiff's favor in the sum of $ 8,000, and defendant appealed.

The principal assignment of error is as to the ruling of the court in refusing a continuance. The amendment did not change the cause of action set forth in the original complaint, but stated it more definitely. No prejudice resulted from the refusal of the court to postpone the trial, for it appears that the witnesses to the occurrence were all present and testified. Defendant introduced Horton and the trainmen who were present. It is not shown that the attendance of any other material witnesses could have been procured by the postponement of the trial. No prejudice, therefore, resulted. St. Louis S.W. Ry. Co. v. Jackson, 93 Ark. 119, 124 S.W. 241.

It is contended that there was not sufficient evidence to sustain the charge of negligence upon the part of the yardmaster, Horton, after his discovery of plaintiff's perilous position. The plaintiff was a car inspector, but was not engaged in inspecting cars when he was injured. He and two other employees, Hair and Holloway, were walking through the yards going to another part of the yards and Horton was having some switching done. The main track runs north and south, and there are two side-tracks--one called "the compress track," running off from the east side of the main track, and the other called "the Y track," running off from the...