Graysonia-Nashville Lumber Co. v. Whitesell

• Citation: 140 S.W. 592
• Parties: GRAYSONIA-NASHVILLE LUMBER CO. v. WHITESELL.
• Decision Date: 30 October 1911
• Court: Supreme Court of Arkansas

Page 592

140 S.W. 592

GRAYSONIA-NASHVILLE LUMBER CO. v. WHITESELL.

Supreme Court of Arkansas.

October 30, 1911.

Appeal from Circuit Court, Howard County; Jeff T. Cowling, Judge.

Action by Mrs. N. M. Whitesell, administratrix of John R. Whitesell, deceased, against the Graysonia-Nashville Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Appellee brought this suit against the appellant to recover damages on account of the death of J. R. Whitesell, which it is alleged occurred while he was conductor and brakeman of a logging train on appellant's line of railroad. At the time the accident occurred, the train was going at a slow rate, some two or two and a half miles an hour. Chas. Belcher and Bank Roe were sitting on the back end of the tender, facing Whitesell, when the accident occurred. Whitesell was standing on the sill, or running board, of the tender, and started to step across to a log car. He placed his left hand on a log lying on the car. His hand slipped, and he fell between the cars. He was dragged a short distance, about 108 feet, and was killed. Roe was on the same side of the engine as Collier, the engineer, and as soon as Whitesell fell he turned his face towards the engine, and began to hollo and signal to the engineer. After he had holloed a few times, the engineer stuck his head out of the window, and the engine was stopped. He does not know whether the engineer stopped it or not. The testimony of both Belcher and Roe shows that Roe hallooed loudly, and that both of them were trying to flag the train. Buster Willis, a negro man, was sitting on the top of the tender at the front end. He called to the fireman, and said, "I believe that man fell." R. E. Gold, the fireman, testified: J. R. Whitesell was my brother-in-law. When Buster Willis called to me, I jumped on the seat box and looked out. I saw Whitesell's head between the tender and the wheels of the first car. I jumped off the box, and said, "I believe we have killed our conductor." I never took time to see what the engineer did, but ran at once to Whitesell. He had hold of the bolt that held the arch bars together with his right hand, and was grabbing at something with his left hand. The arch bar goes from the oil box on the wheel towards the outer edge of the wheel. It holds up the end of the axle, and holds the box to its place. The bolt that holds this arch bar together is about 13 inches long. I could not get him out. I could see the wheel had caught his clothes, but I could not tell as to his body. When I found that I could not get him out, I ran back to the engine and called to the engineer to stop at once; that we were killing our conductor. The engineer fell over in the window, and commenced to hollo for Wepfer, the superintendent. I then jumped up into the engine, and stopped it myself. The train moved 10 or 12 inches after I got up there and stopped the engine. Whitesell was dragged 107 feet from the place where he fell. I helped to measure this distance. I judged as to the point where he fell off by seeing his hat lying there. The jury returned a verdict against the appellant, and from the judgment rendered it has appealed to this court.

Sain & Sain, T. D. Wynne and T. D. Crawford, for appellant. W. P. Feazel, for appellee.

HART, J. (after stating the facts as above).

It is earnestly insisted by counsel for the...