Eureka Springs Ry. Co. v. Timmons

• Decision Date: 25 May 1889
• Parties: EUREKA SPRINGS RY. CO. <I>v.</I> TIMMONS.
• Court: Arkansas Supreme Court

11 S.W. 690

EUREKA SPRINGS RY. CO.v.

TIMMONS.

Supreme Court of Arkansas.

May 25, 1889.

Appeal from circuit court, Carroll county; J. M. PITTMAN, Judge.

Crump & Watkins, for appellant. The appellee, pro se.

HUGHES, J.

While a passenger in one of the coaches on a railway of appellant, en route from Seligman, Mo., to Eureka Springs, Ark., appellee received personal injuries, by the coach in which he was seated leaving the track of the road, and turning over down an embankment. The complaint alleges that the appellant was at the time operating its road from Eureka Springs, Ark., to Seligman, Mo., and that appellant was guilty of negligence in using defective machinery, and in operating its road, which was the cause of appellee's injury. Appellant denied negligence, denied that appellee was injured, and denied that one of its coaches was thrown from the track; and alleged that that part of said railroad from the Missouri line to Seligman, Mo., was owned by the Missouri & Arkansas Railway Company, a corporation organized and existing under the laws of Missouri, but did not deny that it was operated by the Eureka Springs Railway Company, (the appellant.) There was evidence tending to show that the train consisted of a combination car, passenger coach, and engine, and was going down a steep grade, at the rate of 15 or 16 miles an hour or over; that the rear car jumped the track, ran some three or four hundred feet, came uncoupled, and turned over, down a steep embankment; that the appellee was in this car; that the car ran off the track within one and a half or two miles of Seligman; that there was at the time no brakeman on the rear car; that appellee was injured in the hand, arm, thumb, and leg. Some of the witnesses testified that the train at the time the car ran off the track was running 25 or 30 miles an hour. Edward Church, the engineer in charge of the train, testified that he examined the air-brakes and machinery before he left Seligman, and just before the accident occurred and that they were in good condition; that just before the car turned over he received a signal to stop, and applied the air-brakes, and about this time received a signal to go, and then he attempted to release the brakes, and could not do it, but that he could not see the rear car, but that his fireman said that it was off the track, and then he reversed the engine, and stopped the train, and that, as the train stopped, the rear car came uncoupled, and turned over on its side. He testified that "the train ran about 150 feet with a wheel off the track before I received the first signal. After receiving the first signal, we ran about 150 feet, when train stopped." He stated "there were two brakemen on the train that day;" that the position of one was at the front end of the combination car, and of the other on the rear end of the train; that the duty of the brakeman on the passenger train is to take up slack of brakes, and see that the couplings are secure at all times, and to receive any signals from the engineer, and, in case of accident, to apply brakes; that it is a fact that these brakemen can stop the cars when the air-brakes fail to work for the engineer; that it is about 150 feet from where the wheel left the track to where the engineer got the first signal; that immediately there were two taps of the gong, which meant go on. "When I attempted to release the brakes, I detected there was something wrong with the brakes; that the air wouldn't release freely. When I told the fireman to look out and see what was the matter, and he said the rear car was off the track, and at that time the rear car had not turned over, and I immediately reversed the engine." "The bell rope was working properly before, up to the time of the stopping of the car." "Successive ringing of the bell about half a minute before the train stopped." Powell Clayton testified that the "rails are steel rails of the very best order. The track is an unusually good one. The track on the day of the accident was in excellent condition. The machinery was of the best and improved kind." That he "examined track; it was in perfect condition. If the train had been running 25 or 30 miles an hour, it could not have been stopped in the distance it was. From where the truck got on the rail to where the car turned over was about 400 feet; certainly not 500 feet. It would not attract attention so long as the truck was on the rail. It ran on the rail about 30 feet." Also that, "in case of an accident, the car conductor should either ring the bell for brakes, or run to the water-closet, and apply the air-brakes himself." J. B. Obenchain testified: "Examined air-brakes on the coach that came in after the accident, and they were all right. Perhaps at the speed they were running, if the cars were on the track, they would stop at 150 feet. If the truck was off the rail, can't say how long it would take, (that is, supposing the train be constructed as it was.) The stopping of the train at distance I have mentioned depends upon whether everything was quiet, and no confusion, and there was prompt action." He also testified that he was the master mechanic for the company, and that his duty was to look after and keep up machinery; that he examined the wheels and boxes on the morning before the accident; that there was no defect in the machinery, save, after the accident,...