Choctaw, O. & G. Ry. Co. v. Doughty

• Decision Date: 28 October 1905
• Citation: 91 S.W. 768
• Parties: CHOCTAW, O. & G. RY. CO. v. DOUGHTY.
• Court: Arkansas Supreme Court

91 S.W. 768

CHOCTAW, O. & G. RY. CO. v. DOUGHTY.

Supreme Court of Arkansas.

October 28, 1905.

Appeal from Circuit Court, Saline County; Alex. M. Duffie, Judge.

Action by Flora E. Doughty, as the administratrix of the estate of A. Watt Doughty, deceased, against the Choctaw, Oklahoma & Gulf Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

That part of the complaint purporting to state the cause of action is as follows: "That on September 17, 1902, the said A. Watt Doughty was in the employment of the said defendant company as fireman upon one of its freight trains running from Hot Springs to Little Rock, Ark., and while he was thus engaged in the discharge of his duty as such fireman on said defendant's freight train, as it approached the city of Little Rock and within about one mile of the defendant company's depot in said city, on said 17th day of September, 1902, between 12 and 1 o'clock of said day, by the negligence and carelessness of the agents and servants of said defendant company said freight train collided with a passenger train of said defendant company, producing a terrible wreck and causing the death of the said A. Watt Doughty while he was engaged in the discharge of his duty in said employment and without fault of his own, who departed this life on said day intestate by reason of such negligence and carelessness of said defendant company, leaving surviving him the said Flora E. Doughty as his widow, and Willie L. Doughty, aged two years, as his only child and the next of kin of the said deceased. That plaintiff alleges that by reason of the wrongful killing and death of the said A. Watt Doughty, caused as aforesaid, by the negligence and carelessness of the agents and servants of said defendant company, the said Flora E. Doughty as the widow, and the said Willie L. Doughty, as the next of kin, of said deceased, have been damaged in the sum of fifty thousand dollars." To this appellant demurred, on the ground that the complaint does not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the defendant excepted to the ruling. Defendant filed an amended answer, admitting that deceased, Doughty, was its fireman, that he was killed in the collision mentioned in the complaint, and at the time was in the discharge of his duty, but denying that the collision was caused by the negligence and carelessness of the agents and servants of the company, and denying that Doughty's death was caused by the negligence and carelessness of the defendant company. The answer in appropriate words sets up the defenses of "assumed risks," "injury by fellow servant," and contributory negligence. The verdict and judgment were for $12,500. Other facts will be stated in the opinion.

E. B. Peirce, for appellant. E. H. Vance, Jr., for appellee.

WOOD, J. (after stating the facts).

1. "The true doctrine," says Mr. Pomeroy, "to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in the complaint, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, or defective, such insufficiency pertaining to the form, rather than the substance, the proper mode of correction is, not by demurrer, nor by excluding the evidence at the trial, but by a motion to make the averments more definite and certain by amendment." Pomeroy, Rem. and Rem. Rights, § 549. The complaint was in bad form; but, taking it altogether, it charges that the negligence of the agents and servants of appellant, which caused the collision and resultant death of Doughty, was the negligence of appellant. In other words, it in effect charges that the death of Doughty was brought about by the negligence of appellant, in that its agents and servants by their negligence and carelessness caused a collision of trains which produced his death. The charge that Doughty's death was caused by the negligence of the company, through the negligence and carelessness of its agents and servants in causing a collision of trains, necessarily involved the idea that the alleged negligent act was not the act of fellow servants. For if the act of a fellow servant, appellant, in a legal sense, was not negligent and not liable. Railway Co. v. Duffey, 35 Ark. 602; Fones v. Phillips, 39 Ark. 17, 43 Am. Rep. 264; Railway v. Shackelford, 42 Ark. 417; Railway v. Harper, 44 Ark. 524; Railway v. Morgart, 45 Ark. 318; Railway v. Gaines, 46 Ark. 555; Railway v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266, 11 L. R. A. 773; Railway v. Torrey, 58 Ark. 217, 24 S. W. 244; Railway v. Henson, 61 Ark. 306, 32 S. W. 1079; Railway v. Becker, 63 Ark. 477, 39 S. W. 358; Railway v. Brown, 67 Ark. 306, 54 S. W. 865. It therefore devolved upon appellee to show that the alleged negligent acts complained of were done by a class of servants for whose negligence appellant was liable, before recovery could be had under this complaint. But, under the liberal rules of the reformed procedure we are of the opinion that the allegations of the complaint, while loose and inartistic in language and form, were yet sufficient to admit such proof. If the allegations were deemed insufficient, in that they failed to show the particular acts of the particular agents which constituted the negligence of the company, a motion to make more specific was the remedy. Bushey et al. v. Reynolds et al., 31 Ark. 657; Fordyce v. Merrill, 49 Ark. 277, 5 S. W. 329; Murrell v. Henry, 70 Ark. 161, 66 S. W. 647. "In construing a pleading for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties." Applying this statutory rule to the case in hand, it seems to us reasonably clear that the complaint states a cause of action. If we concede that the complaint fails to state a cause of action, because it fails to show either by positive averment, or by statement of facts, from which such inference is inevitable, that the negligence complained of was the negligence of other than fellow servants, still the appellant's demurrer cannot avail here. For, instead of resting on its demurrer, it answered over and accepted the issue on this, the only ground upon which the complaint was demurrable, if at all. The answer contains the following language: "If his [Doughty's] death resulted from the negligence act or omission of anyone, that such act or omission of duty was an act of a fellow servant, for which this defendant was not liable." Thus the appellant treats the complaint as if it set up that the negligence complained of was the negligence of other than fellow servants, and denies same, in effect, by alleging that the "negligent act or omission was an act of fellow servant." "A defect in pleading is aided, if the adverse party plead over to, or answer the defective pleading in such a manner that an omission or informality therein is expressly or impliedly supplied, or rendered formal or intelligible." 1 Chit. Pl. 671; Bliss, Co. Pl. § 437; Pindall v. Trevor, 30 Ark. 249; Davis v. Hare, 32 Ark. 386; Webb v. Davis, 37 Ark. 551; Ogden v. Ogden, 60 Ark. 70, 28 S. W. 796, 46 Am. St. Rep. 151.

2. The train upon which Doughty was killed was a regular mixed local train from Hot Springs to Little Rock. It was going east and collided with an extra or irregular train going west, about one mile from Little Rock Station, about 2:30 p. m. The engineer upon the regular train received his orders as to that train at Butterfield Station. Under the rules of the company for running of trains, a regular train had the right of way of the track over all extra trains. At Hot Springs Junction, three miles south of Little Rock, defendant company maintained a regular registering station, where all trains were required by it to stop and see that all overdue trains had arrived, registered, and passed, and it was the duty of the conductor in charge of each train to stop at this registering station and register his train. Levi Greer, the conductor on the train upon which deceased was fireman, stopped his train at this junction, and, after remaining there two or three minutes, ordered the engineer on said train to pull out. There was no telegraph station or depot agent or other employé at the junction to give orders to passing trains, and there was no effort made by the conductor or any one else to stop the train after it left the junction before the collision. Signals for the handling of the train were received from the conductor, through the fireman or brakeman. The air brakes on the train were working all right. The chief dispatcher of the district was located at Little Rock. All trains in the district were in his charge. He originated the running orders of the trains, and the actual running of the train was under the direction of a conductor. But the engineer also received orders from the dispatcher for the running of trains, and was equally responsible for their safety. Regular trains were run on schedule time. On this occasion the regular train was behind time. When the collision occurred Doughty was killed, and his body was lying, when first found, in the gangway of the engine, where he was required to stand while putting coal from the tender into the fire box. It is manifest from these facts, which are undisputed, that the collision was the result of the negligence of either the conductor in not observing orders, if properly given, for the running of the trains, or of the train dispatcher in not giving proper orders. It was impossible for this collision, under the proof, to have occurred in any other way. The engineer was not negligent, and Doughty, the fireman, was not negligent, for he was found dead at his post. Then how else could it have happened, save through the negligence of the train dispatcher in giving improper orders for the running of these colliding trains,...