Fourche River Valley & Indian Territory Railway Company v. Tippett
Decision Date | 11 December 1911 |
Citation | 142 S.W. 520,101 Ark. 376 |
Parties | FOURCHE RIVER VALLEY & INDIAN TERRITORY RAILWAY COMPANY v. TIPPETT |
Court | Arkansas Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from Perry Circuit Court; Robert J. Lea, Judge; affirmed.
STATEMENT BY THE COURT.
Appellant was engaged in operating log trains on its railway, and appellee was a brakeman on one of its trains. The log train consisted of an engine and tender, a string of log cars, and then a trailer and passenger coach.
Appellee testified that he was the rear brakeman, and that his duties were, when coming down hill, to help set and take off brakes. It was his duty to make the uncoupling from the passenger and log cars. The uncoupling on the day of the injury to appellee was made on a trestle about 18 or 20 feet high, and it was down grade from where the train was uncoupled to the switch. When they neared the place to uncouple, the engineer would shut off the steam and let the train roll; and when appellee pulled the pin and gave the signal, the engineer would pull out. When logs were so that he could, the appellee would sit down, but sometimes there was no room, and appellee had to stand on the platform of the trailer, and pull the pin and give the conductor the signal, and then the conductor would signal the engineer. During the two or three months that appellee had worked for the appellant on the log train, he had to do the uncoupling in the manner indicated probably one-third of the time. On the day of the accident the logs were loaded to the end of the car, so that he could not stand on the end of the log car and do the uncoupling; he therefore pulled the pin from the trailer and intended to step across and get hold of the logs and holloa back to the conductor. He got his fingers on the logs, and the head end gave a jerk forward, causing him to fall between the cars on the track. After pulling the pin he stepped across to the platform at the end of the log car as he had always done, but he gave no signal to move forward, and didn't know whether the engineer received a signal or not, but he gave no signal to the conductor that he was ready for the train to move forward. He would not give a signal until he had got into a safe place; and when he gave one, it indicated that he was in a safe place, and the engineer was to go ahead; and when the engineer got the signal, he was authorized to assume that appellee was in a safe place and to move ahead if he wanted to. The appellee did the uncoupling, on the day he was injured, under directions of the conductor.
The above are substantially the facts testified to by appellee upon which he based his allegations that he was injured by the negligence of the appellant while he was in the discharge of his duties as brakeman. After reciting substantially the above facts, the appellant alleges that, because of the logs projecting, he uncoupled from the trailer, and stepped across to the end of the log to take his position, and, while in the act of so doing, and before any signal was given, the log train was carelessly and negligently jerked forward with such rapidity that plaintiff was thrown from his position, and that he fell and was run over by the trailer and passenger car, and was greatly cut, bruised and mangled, and on account thereof suffered great pain of body and mind, and is now and will ever be a cripple, either as a result of the engineer moving forward without signal or the conductor giving a signal without right before he had secured his position. He prayed for damages in the sum of $ 20,000.
The appellant denied the allegations of the complaint, and set up that "appellee's injuries were contributed to and caused by his own negligence, and that it was his duty to work upon another part of the train, and that he was negligently and wrongfully occupying a position upon the trailer away from the place of his duties." The appellant alleged that plaintiff "unnecessarily stood upon the trailer, and uncoupled the log section, and stepped to a place where he could be seen by the engineer, and signaled for the engineer to move the train, and in an effort to jump from the rear end of a log car he fell and was hurt all of which was gross negligence, and contributed to, and was the sole cause of, his injury, and he was otherwise negligent, contributing to his injury."
There was testimony on behalf of appellant tending to show that appellee was head-brakeman on the train, and that it was not his duty to uncouple the cars, but the duty of the rear brakeman, and that the conductor had not ordered the appellee to uncouple the cars, and that he ran out and pulled the pin before anything could be done to stop him, and that the conductor tried to stop him, and that no one would uncouple the way appellee was attempting to do.
There was evidence tending to prove that appellee, after uncoupling the cars, gave the signal to move forward, and went to step from the trailer to the log car when he fell. The witness stated: "He stepped to one side, and gave the signal, and stepped back, and stepped on the log car, and fell beside the track."
The engineer testified that he received the signal to move forward, and the conductor testified that he didn't give any signal to move forward; and, if there was any given, he did not see it.
There was testimony also on behalf of appellant tending to show that there was no jerk or moving forward of the train, and that the speed of the train was not increased. There was some testimony to the effect that appellee had drunk intoxicating liquor on the day of his injury.
One witness testified that on the morning of the accident, between 8 and 9 o'clock, he saw the plaintiff on the train and gave him a drink. While there was some evidence tending to show that plaintiff had drunk intoxicating liquor on that day, there is no evidence that plaintiff was drunk at the time of the accident.
The witness J. Q. A. Tippett was asked if, in seeing different persons make the uncoupling, he observed the position they occupied, and in answer he said: "You can't do it always in the same position." He was also asked: "When the logs don't stick out, what position does he get it?" and he answered: Exceptions were properly saved.
The court granted appellee the following prayers for instructions:
The appellant duly excepted to the ruling of the court in granting these prayers. The appellant in its prayers for instructions Nos. 6 and 11 asked the court to instruct the jury "that appellee to recover would have to prove his...
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