Johnson v. Missouri Pacific Railroad Co.

• Decision Date: 16 February 1925
• Docket Number: 174
• Citation: 269 S.W. 67,167 Ark. 660
• Parties: JOHNSON v. MISSOURI PACIFIC RAILROAD COMPANY
• Court: Arkansas Supreme Court

269 S.W. 67

167 Ark. 660

JOHNSON v. MISSOURI PACIFIC RAILROAD COMPANY

No. 174

Supreme Court of Arkansas

February 16, 1925

Appeal from Crawford Circuit Court; James Cochran, Judge; reversed.

STATEMENT OF FACTS.

George J. Johnson sued the Missouri Pacific Railroad Company to recover damages for personal injuries alleged to have been sustained by him while in the employment of the defendant as a locomotive fireman.

George J. Johnson was twenty-nine years of age, and lived at Van Buren, Arkansas, at the time he was injured. According to his testimony, on the 26th day of December, 1922, he was locomotive fireman on engine 1224, pulling extra train 1224 north from Van Buren, Arkansas, to Coffeyville, Kansas. After they got out on the road at Greenwood Junction, Johnson noticed that the headlight and the lights in the engine cab were defective. The headlight did not show down the track far enough, and the lights in the cab flickered. He spoke to the engineer about it, and the latter replied that they would have to go to Coffeyville and have the lights fixed there. At Sallisaw, Oklahoma, the train met the southbound fast train. They waited on the siding fifteen or twenty minutes for it. The train then went on towards Upson. South of Upson there is a curve. The point of the curve is about 500 yards from the south switch. The curve favors the engineer, who is on the right side of the engine. It is 500 yards straight track from the point of the curve to the south switch. The switch in question was open, which caused the train to be derailed. The engine turned over on the engineer's side, and Johnson was severely injured. The switch-stands in question had red and green signals on them. The red means danger, and the green is the clear-track signal. You can tell whether a switch is blocked by the light on the switch-stand, and also by the position of the lights. If the engine in question had been equipped with a proper headlight, the engineer could have been able to distinguish the red board a distance of 1,000 feet.

Frank Hedrick, the engineer on the train in question, was also a witness for the plaintiff. Soon after they started on the run he noticed that they did not have very good lights. The headlight of the engine was very dim. If a horse had been on the track, he could not have seen it 400 feet away. Ordinarily he could have seen it 1,000 to 1,200 feet away. If the track had been straight where the accident occurred for a distance of 800 feet, he would have been able to see the target on the switchstand if he had had good lights. He would have been able to stop his train in 600 feet. On the night in question he could not see to tell whether the switch was spread open the distance of 800 feet. If there had been a good light on his engine he could have told that far whether or not the danger signal showed on the switch.

A physician for the plaintiff testified as to the character and extent of his injuries. According to his testimony, the injury to the plaintiff was permanent, and was a very severe one.

In brief, the evidence for the defendant tends to show that a trespasser had knocked the lock off of the switch-stand, and spread the switch open a short time before the accident occurred. The trainmen on the train which had last passed the switch-stand, going towards the train in question, testified that the switch was closed when their train passed it.

The jury returned a verdict in favor of the defendant, and the plaintiff has appealed.

Judgment reversed, and cause remanded.

George G. Stockard, for appellant.

The court erred in admitting the testimony of Dr. Zeiner over the objection of appellant. C. & M. Dig. § 4149; 98 Ark 352; 113 Ark. 296; 114 Ark. 112; 117 Ark. 396; 90 N.W. 815 117 Iowa 442; 24 Hun (N. Y.) 43; 124 Iowa 623; 111 Ark. 554. The court erred in refusing to allow appellant to cross-examine witness Hedrick upon matter brought out by appellee. The evidence was proper under the rule announced in 75 Ark. 251. Instruction No. 3 given at the request of defendant was erroneous, without the qualification suggested by plaintiff 149 P. 421, 96 Kan. 30; 184 Mass. 476, 69 N.E 338. Instruction No. 11 was erroneous. 111 Va. 771, 69 S.E. 938; 90 Ark. 407.

Thomas B. Pryor and Vincent M. Miles, for appellee.

The purpose of Dr. Zeiner's examination was to acquire information for both parties in a controversy between them, and his testimony was properly admitted. 111 Ark. 548; Jones on Evidence in Civil Cases (3rd ed.), § 759; 28 R. C. L. § 129 p. 540. The cases cited by appellant on the point are not applicable under this state of facts. The case cited by appellant at 96 Kan. 30 149 P. 421 is an authority in support of instruction No. 6 about which he complains, the same being on the question of proximate cause. It is too late to raise a specific objection to instructions after the verdict. 164 Ark. 556.

OPINION

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

Counsel for the plaintiff contends that the court erred in giving instructions Nos. 3, 6 and 7 at the request of the defendant. These instructions read as follows:

"3. You are instructed that it is not the duty of the defendant to have any person constantly inspecting its switch-lights and switch-stands, but that if, in the usual course of its business, and without negligence, the defendant placed a light in the proper manner on its switch at Upson, and had the switch properly locked and lighted for the main line, and that some person, without notice to the defendant, broke open such switch, and that plaintiff was injured as a result of the breaking of said switch-lock and the opening of said switch, then your verdict will be for the defendant, unless the defendant knew that said switch was broken or dangerous.

"6. You are instructed that you are not to guess or conjecture as to what was the proximate cause of the derailment of the train whereby the plaintiff was injured, and, if you believe that said derailment which injured the plaintiff would not have occurred except for the fact that said switch had been opened by trespassers without notice to the defendant, than the action of such trespassers in opening said switch was the proximate cause of the derailment, and your verdict must be for the defendant.

"7. You are instructed that, although you may find that the headlight did not focus as usual, yet this will not entitle the plaintiff to recover if you believe that the proximate cause of the plaintiff's injury was the act of third persons, without notice to defendant, in breaking the lock of said switch and opening same. By proximate cause is meant the nearest efficient cause, or, in this case, the thing without the happening of which the derailment could not have happened."

The instructions in question were prejudicial, because they made it the imperative duty of the jury to return a verdict for the defendant if it believed that the switch was thrown open by a trespasser. This constituted reversible error. It was the theory of the plaintiff that, notwithstanding the switch had been thrown open by a trespasser, if the engine had been equipped with a good headlight, the engineer could have seen that the switch was open and could have stopped his train in time to have avoided the injury.

Evidence on the part of the plaintiff tended to show that, when the switch was thrown, a red signal would be displayed upon it. The engineer, at a distance of 800 to 1,000 feet, could have discovered that the red signal was displayed. He could have told this, not only by the color of the signal, but by its position on the switch-stand. The instructions complained of wholly ignored this theory of the plaintiff.

Instruction No. 3 told the jury that, if the defendant had placed a light in the proper and customary way on the switch-stand in question, had left the switch properly locked, and it had been broken open by some third person without notice to the defendant, and the plaintiff was injured as the result of the breaking of the switch-lock and the opening of the switch, its verdict should be for the defendant, unless the defendant knew that said switch was broken or dangerous. Thus it will be seen that this instruction entirely ignored the plaintiff's theory of the case.

As we have already seen, suppose the switch-lock had been broken and the switch thrown open only five minutes before the train in question came along; this would not have relieved the defendant from responsibility if the jury should believe the plaintiff's evidence. According to the evidence for the plaintiff, if a proper headlight had been on the engine, the engineer could have seen the danger signal on the switch-stand at a distance of 800 feet and could have stopped the train in 600 feet. The engineer was keeping a lookout and the jury might have found that he could and would have stopped the train before it got to the switch if he had had a good headlight. Therefore, even though some trespasser broke the switch-lock and opened the switch only a few minutes before the train came along, it cannot be said that this act alone caused the injury; for, if a proper headlight had been on the engine, the jury might have found that the accident could and...