Kansas City Southern Railway Company v. Leinen, 54

CourtSupreme Court of Arkansas
Writing for the CourtSMITH, J.
Citation223 S.W. 1,144 Ark. 454
Docket Number54
Decision Date14 June 1920

223 S.W. 1



144 Ark. 454

No. 54

Supreme Court of Arkansas

June 14, 1920

Appeal from Little River Circuit Court; James S. Steel, Judge; modified and affirmed.

F. H. Moore, J. R. Bell and J. B. McDonough, for appellant; S.W. Moore, of counsel.

1. Plaintiff at the time of his injury was not engaged in interstate commerce, and hence not entitled to recover under the Federal Employer's Liability Act, and the judgment based on that act should be reversed. 232 U.S. 248; 218 F. 748; 233 U.S. 473; 241 Id. 177; 238 F. 95; 253 Id. 736; 261 Id. 760; 159 N.W. 14; 157 Id. 616; 154 Id. 516.

2. The negligence charged was not proved, and the peremptory instruction requested by defendant should have been given. In the absence of an unusally violent stop, there is no negligence. The employee assumes the risk. 269 Mo. 464; 165 Id. 612; 195 Id. 105; 259 Id. 109; 130 Id. 132; 93 Mo.App. 289; 98 Id. 494; 272 Mo. 350. This accident happened in Missouri, and the decisions of that State are in point. See, also, 93 N.E. 575. The injury was an accident, purely, and there was no negligence. 98 Mo.App. 494, 502. The proximate cause, ordinarily, is a question for the jury. 86 Ark. 289; 110 S.W. 1037; 69 Ark. 402; 64 S.W. 226; 29 S.Ct. 321.

3. The court erred in giving plaintiff's instruction No. 1. It is not supported by any evidence. 87 Ark. 243; 88 Id. 594; 86 Id. 91; 85 Id. 390; 77 Id. 567. It conflicts with other instructions properly given. 84 Ark. 233; 72 Id. 440; 76 Id. 69.

4. The court erred in giving instruction No. 2 1/2 for plaintiff. 135 Mo. 414. Plaintiff was barred by contributory negligence. 2 Cyc. 507 and note 47; 240 U.S. 444; 36 S.Ct. 406; 162 Mo. 463; 38 Cyc. 1608, note 1608. The instruction is ambiguous and misleading. 229 U.S. 114; 63 Ark. 477.

5. It was error to give instruction No. 3 for plaintiff. 63 Ark. 477; 39 S.W. 359; 55 Ark. 588; 119 Id. 295.

6. It was error to give No. 6 for plaintiff. 241 U.S. 229.

7. It was error to give instruction No. 7 for plaintiff. 96 Ark. 614; 150 S.W. 863.

8. The court erred in admitting certain depositions taken by plaintiff. See Bellus and Long, 32 S.E. 266.

9. The judgment is grossly excessive. 241 U.S. 485, 494; 100 Ark. 107; 114 Id. 224; 118 Id. 49; 105 Id. 533.

10. A remittitur will not cure the error, and the judgment should be reversed. 184 S.W. 1051; 161 U.S. 397; 158 Id. 41-53; 91 Id. 646-656; 91 N.E. 431; 141 Mo.App. 453.

A. D. Dulaney, Chas. Stephens and John H. Curran, for appellee.

1. This case comes within the provisions of the Federal Employers' Liability Act. 1 Roberts, Fed. Empl. Act, p. 847; 201 S.W. 128; 124 C. C. A. 565; 204 F. 751; 196 U.S. 1; 229 Id. 146; 33 S.Ct. 648; 238 U.S. 439; 155 N.W. 504; 129 Ark. 211, etc.

2. There was no error in the instructions given for plaintiff. 97 Ark. 198; 98 Id. 227; 88 Id. 233; 115 S.W. 175; 67 Id. 594; 62 Id. 65; 86 Ark. 76; 77 Id. 458. The verdict and judgment are right on the whole case, even if there was slight error in the instructions. 142 Ark. 302; 143 S.W. 106; 113 Ark. 380; 85 Id. 127; 97 Id. 576. No specific objections were made to the instructions; the objections were general. 96 Ark. 531. Proper instructions should have been suggested and offered to the court. 61 Ark. 613.

3. The verdict is not excessive. 79 Ark. 137; 137 S.W. 1109. But, if so, a remittitur will cure this, the only error. 15 Ark. 345; 127 Id. 429; 3 Am. Law Rep. Anno. 605; 183 Ala. 138; 62 So. 679; 5 Ga.App. 402; 63 S.E. 299; 121 N.W. 186; 46 So. Rep. 929; 39 L. R. A. (N. S.) 202; 130 La. 66; 67 Minn. 260; 1 Am. Negl. Rep. 93; 167 S.W. 656; 13 Hun (N. Y.) 4; 103 Kan. 655.

4. The jury have passed on the amount of damages, and the evidence sustains the verdict and is conclusive. 184 S.W. 1957; 141 Mo.App. 453.

SMITH, J. Mr. Justice HUMPHREYS dissents from the modification.


[144 Ark. 457] SMITH, J.

Appellee, plaintiff below, brought this suit to recover damages on account of injuries received by him while employed as a brakeman by appellant railway company near Joplin, in the State of Missouri. There was a verdict and judgment in his favor for $ 53,333, and this appeal is from that judgment.

The train on which appellee was employed at the time of his injury consisted of an engine and a caboose and about sixteen empty Rogers ballast cars, which were being transported [223 S.W. 2] from Lanagan, Missouri, to Webb City, Missouri. This train with its crew had for some weeks been engaged in transporting ballast from Webb City to points on appellant's railway in southwest Missouri, and in transporting the empty ballast cars back to the chat [144 Ark. 458] piles in order that they might again be loaded with the chats, which were being used for ballast.

The train crew consisted of the following men. Murphy, the engineer; Hazen, the fireman; Harriman, a brakeman; Hayes, the conductor, and appellee, another brakeman. The train was exclusively employed in hauling and distributing the ballast on the main line of appellant's railway. On arriving at the place where the ballasting was being done, the chats were allowed to run out of the middle of the hopper-shaped cars which were being used on to the tracks while the train moved along at the rate of about two and one-half miles per hour. The method employed resulted in actually distributing the chats between the rails, and a part of every train load was unloaded on the main line of the railroad over which interstate trains ran. This point is of importance because appellee elected to rely upon the count of his complaint in which he alleged that he was within the provisions of the Federal Employers' Liability Act at the time of his injury.

The negligence complained of is indicated by the interrogatories submitted to the jury and the answers returned thereon.

"Do you find from a preponderance of the evidence that Engineer Murphy was guilty of negligence in not keeping a proper lookout and thereby failing to observe the first signal given by Harriman?

"Answer: He was guilty.

"Was Harriman negligent in not using the conductor's brake valve in the cupola of the caboose after he had failed for two or three signals to get the engineer to respond?

"Answer: He was guilty.

"Was Hayes, under all the surrounding circumstances, negligent in saying to Leinen what caused Leinen to start back on to the car when he said Hayes knew that the danger of a stop still existed?

"Answer: He was guilty.

[144 Ark. 459] "1. State upon what act or acts of negligence you base your verdict?

"1. We, the jury, base our verdict on the negligence of the Engineer, Murphy, in not keeping the proper lookout and applying the emergency brake at the proper time.

"2. The negligence of Brakeman Harriman in not applying conductor's brake valve after giving the third signal to Engineer Murphy.

"3. Also the negligence of Conductor Hayes in saying, come back Nick, everything is all right, before countermanding the emergency signal.

"Frank Williams, Foreman."

At the time of the injury the train was moving north from Joplin to Webb City, Missouri. The engine was at the rear of the train and was backing up, which would put the engineer on the west side of the engine and the fireman on the east side. The caboose was next to the engine, and the cars were in front of the caboose. The brakeman, Harriman, was in the cupola of the caboose for the purpose of passing signals from the head-end of the train to the engineer. Conductor Hayes and appellee were on the front end of the head car in the direction in which the train was moving for the purpose of keeping the lookout and of passing signals back to brakeman Harriman, for transmission to the engineer.

As the train was passing through a cut and was approaching a private road crossing, appellee and the conductor saw the heads of a team of horses approaching the track from the east along this private road. There was a four per cent. curve in the road at that point, which made it impossible for the engineer to see the front end of the train. When first observed, the team was, according to appellee, between 250 and 275 feet and, according to Hayes, the conductor, from 160 to 240 feet, away, and the train was moving at the rate of ten miles per hour. A number of witnesses testified as to the distance and time within which the train could have been stopped after the emergency signal was given. When the team was first observed, it appeared certain that the train would [144 Ark. 460] strike it if it attempted to go upon the track, as it was apparently about to do, and appellee himself gave the emergency stop signal. This emergency signal, which is also called a washout signal, is given by elevating the arm and allowing it to fall rapidly to the side. The conductor and appellee yelled at the driver of the team and attracted his attention to the impending danger just in time to avert it. But, after giving the washout signal for the emergency stop, in order to avoid being injured in case the train collided with the team and wagon, the conductor got up on the east side of the head car in order to be able to get off the train if the collision could not be avoided, and the appellee crossed over to the west side of the car and got down by means of the hand-holds with his foot on the stirrup or lower step in order that he could get off in case the collision occurred. Hayes could see that the team had stopped; but appellee could not, and as soon as Hayes saw there would be no collision he called to appellee. Hayes testified that he called out to appellee, "It's all right; we never hit them." But, according to appellee, the conductor said, "It's all right, Nick; come on up." Testimony was offered as to the meaning of the last quoted remark in railway parlance, and, according to the testimony offered in appellee's behalf, the remark meant that the emergency signal...

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