Choctaw, Oklahoma & Gulf Railroad Co. v. Doughty

Decision Date28 October 1905
Citation91 S.W. 768,77 Ark. 1
PartiesCHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. DOUGHTY
CourtArkansas Supreme Court

Appeal from Saline Circuit Court; ALEXANDER M. DUFFIE, Judge affirmed.

STATEMENT BY THE COURT.

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, Arkansas, 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 twelve and one 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, age 2 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 $ 50,000.

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-servants, " and contributory negligence.

The verdict and judgment were for $ 12,500. Other facts will be stated in the opinion.

Judgment affirmed.

E. B. Peirce and T. S. Buzbee, for appellant.

In pleading a conclusion of law or opinion, rather than the facts constituting the alleged negligence and carelessness of defendant, the complaint failed to state a cause of action. Kirby's Digest, § 6091; 125 F. 187, and cases cited; 35 Ark. 106; 37 Ark. 599; 50 Ark. 562; 64 Ark. 39-46; 58 Ark 227; 66 N.W. 824; 22 P. 1076; 26 P. 560; 104 Mo. 413; 100 Ind. 491. The complaint was also defective in failing to allege facts showing that the negligence complained of was not the negligence of fellow-servants. 35 Ark. 602; 39 Ark. 17; 42 Ark. 417; 44 Ark. 524; 45 Ark. 318; 46 Ark. 555; 54 Ark. 289; 58 Ark. 217; Ib. 339; 61 Ark. 306; 67 Ark. 306; 37 F. 189; 134 Ill. 209; 41 Ill.App. 522; 146 Ill. 605; 106 N.C. 537; 12 S.E. 124; 134 Mass. 354; 63 Ark. 477.

If the proof fail to show negligence on the part of the company, or on the part of its employees, for which it would be responsible to plaintiff, the verdict is not supported by the evidence. 44 Ark. 524; 46 Ark. 567; 51 Ark. 467; 71 Ark. 258; 74 Ark. 19; 179 U.S. 658.

Instructions 1, 2, 3 and 5, though in the abstract correct, were erroneous, because there was no evidence upon which to base them. 74 Ark. 19.

It was error to refuse instructions numbered 6, 7 and 11 asked by defendant, and in their stead to give instruction No. 4 asked by plaintiff. It is the duty of the fireman to keep a lookout when, under the circumstances, a lookout by the engineer would be ineffective. Kirby's Digest, § 6607; 62 Ark. 186; 64 Ark. 238. Such duty being imposed by statute and by his employment, the jury should have been limited to the inquiry whether or not the failure to perform it contributed to the injury. Shearman & Redfield on Neg., vol. 1 (5 Ed.), § 110; 12 S.E. 819; 23 S.W. 725; 7 N. F. 604. The verdict was excessive. 57 Ark. 377; Ib. 306.

E. H. Vance, Jr., and Andrew I. Rowland, for appellee.

The allegations of a pleading should be liberally construed, with a view to substantial justice between the parties. Kirby's Digest, § 6130; 31 Ark. 657; 63 Ark. 563. If a good cause of action is defectively or insufficiently stated, objection should be taken, not by demurrer, but by motion to make more definite and certain. 31 Ark. 657, and cases cited. 32 Ark. 315; 38 Ark. 393; 49 Ark. 277; 52 Ark. 378; 56 Ark. 629.

It is the master's duty to furnish the servant reasonably safe appliances and a reasonably safe field of operation. 77 S.W. 895; 48 Ark. 474; 59 Ark. 98; 51 Ark. 457; 56 Ark. 314; 67 Ark. 399; 70 Ark. 136; Ib. 513; 86 S.W. 827.

Cntributory negligence is never presumed, and the burden of proving it is on the defendant. Beach on Con. Neg., §§ 156-7; 46 Ark. 182; Ib. 436; 48 Ark. 348; Ib. 475; 58 Ark. 125; 100 U.S. 225; 15 Am. & Eng. R. Cases, 265; Shearman & Redfield on Neg., § 44; What., Neg., § 423; 57 Ark. 312; 74 Ark. 19; 15 Wall. 401. In the absence of contrary evidence, the law presumes that the servant, killed while on duty, exercised due care. 14 Am. & Eng. Enc. Law (1 Ed.), 871; 78 Mo. 195; 106 N.Y. 512; 97 Mo. 448; 4 Elliott on Railroads, 1701; 68 S.W. 559; 77 S.W. 890. The verdict was not excessive. 33 S.W. 374; 34 S.W. 796; 46 S.W. 64; 47 S.W. 615; 50 S.W. 539; 55 S.W. 1119; 51 S.W. 558; 65 S.W. 217; 35 L. R. A. 155; 82 N. Y. St. 1057; 87 N. Y. St. 617; 170 N.Y. 587; 80 S.W. 852; 81 S.W. 991; 85 S.W. 62; 60 Ark. 551; 58 Ark. 454.

OPINION

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 petition, 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, however, 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 before the trial to make the averments more definite and certain by amendment." Pomeroy, Code Rem. (4 Ed.), § 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 collision of trains necessarily involved the idea that the alleged negligent act was not the act of follow-servants. For if the act of a fellow-servant, appellant, in a legal sense, was not negligent and not liable. Little Rock & F. S. Rd. Co. v. Duffey, 35 Ark. 602; Fones v. Phillips, 39 Ark. 17; St. Louis, I. M. & S. Railway v. Shackelford, 42 Ark. 417; St. Louis, I. M. & S. Railway v. Harper, 44 Ark. 524; St. Louis, I. M. & S. Railway v. Morgart, 45 Ark. 318; St. Louis, I. M. & S. Railway v. Gaines, 46 Ark. 555; Railway Company v. Triplett, 54 Ark. 289; Railway Company v. Torrey, 58 Ark. 217; St. Louis S. W. Railway v. Henson, 61 Ark. 302, 32 S.W. 1079; K. C., F. S. & M. Ry. Co. v. Becker, 63 Ark. 477; St. Louis, I. M. & S. Railway Co. v. Brown, 67 Ark. 295, 54 S.W. 865.

It therefore devolved upon appellee to show that the alleged negligent act complained of was 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 agent which constituted the negligence of the company, a motion to make more specific was the remedy. Bushey v. Reynolds, 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." Kirby's Digest, § 6130. 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...

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