Fourche River Valley & Indian Territory Railway Company v. Tippett

Decision Date11 December 1911
Citation142 S.W. 520,101 Ark. 376
PartiesFOURCHE RIVER VALLEY & INDIAN TERRITORY RAILWAY COMPANY v. TIPPETT
CourtArkansas 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: "If it is not sticking out, he can ride over here, and stoop over and pull the pin, and go on with the train. Sometimes they get over there, and turn around, and let the pin down. They don't do it two times the same way. They pull it here and sometimes there." Exceptions were properly saved.

The court granted appellee the following prayers for instructions:

"No. 1. The court instructs the jury that if they believe from the evidence that plaintiff was in the employ of the defendant company in the capacity of brakeman, and that it was his duty acting in that capacity to uncouple the log section from the trailer and passenger coach, and that he did so, and while doing so he was injured by the negligence and carelessness of the engineer in causing said train to jerk violently and move forward with unusual speed, your verdict will be for the plaintiff unless you should further find that such injury was the result of plaintiff's own negligence.

"No. 2. You are further instructed that if you find from the evidence that it was the duty of plaintiff to uncouple said cars, and that in making said uncoupling it was his duty to remain on the end of the log section of said train while it was being switched, and that in order to do so he had to gain his position on same before said train was permitted to move forward, and that by reason of the logs extending over the platform he had to remain upon the trailer, and that said forward movement was only to be made when either the conductor or engineer was signaled by plaintiff that he was ready, and you further find from the evidence that plaintiff did not give the signal for the train to move forward, but that the engineer moved forward without a signal to do so, and that, on account thereof, plaintiff, while in the exercise of due care, was thrown from said car and injured, your verdict will be for the plaintiff, unless you further find that plaintiff's injury was caused by his own negligence.

"No. 3. You are instructed that if you find for plaintiff you will assess his damages in such sum as you find from the evidence, as fair-minded and reasonable men believe will be a fair compensation to him for his pain and suffering, if any, on account of his injuries, his loss of time, if any, and such pain and suffering as you believe from the evidence he may suffer in the future on account of such injuries, giving him such sum as you as fair-minded and reasonable men find to be fair and just between the parties.

"No. 4. You are further instructed that if you believe from the evidence that plaintiff was in the performance of his duty in making the uncoupling of the log section from the passenger coach and trailer, and if you further believe from the evidence that the engineer had no right to move forward without a signal to do so after said uncoupling was made, and that he did so without a signal, and the said movement was unknown to plaintiff, and that on account of said violent jerk or forward movement with unusual speed without notice to plaintiff and before he was ready for said forward movement, and that on account thereof plaintiff was thrown from said car while in the exercise of due care and injured, your verdict will be for plaintiff, unless you find that plaintiff's injuries were the result of his own negligence."

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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