Kansas City Southern Railway Co. v. Mickel

• Decision Date: 06 November 1944
• Docket Number: 4-7438
• Parties: Kansas City Southern Railway Co. v. Mickel
• Court: Arkansas Supreme Court

183 S.W.2d 45

207 Ark. 872

Kansas City Southern Railway Co. v. Mickel

No. 4-7438

Supreme Court of Arkansas

November 6, 1944

Appeal from Sevier Circuit Court; Minor W. Millwee, Judge.

Reversed.

Joseph R. Brown, for appellant.

Wesley Howard and E. K. Edwards, for appellee.

OPINION

Knox Justice.

This action results from a collision between a railroad train and a motor truck loaded with lumber, which collision occurred at Stillwell Avenue crossing in the city of DeQueen, about 11 a.m., June 22, 1943. Appellee, Melvin Mickel, the driver of the truck, instituted action against appellant, The Kansas City Southern Railway Company, to recover damages for personal injury allegedly sustained by him, and he and his mortgagee, Horatio State Bank, instituted action to recover alleged damage to the truck. Trial resulted in verdicts against appellant, awarding appellees Mickel and the bank $ 500 as damage to the truck, and Mickel $ 250 on account of personal injury. Judgments were entered in accordance with the verdicts, and appellant railway company prosecutes this appeal, urging as the sole ground for reversal lack of evidence of negligence on its part, resulting in or contributing to the accident. Appellant contends that because of appellees' failure to refer to any evidence in the record tending to support any allegation of negligence on the part of appellant they impliedly, at least, conceded that proof of negligence by appellant, its servants and employees is lacking, and that appellees are forced to rely for recovery upon failure by appellant to show that it discharged the duty imposed on it under the lookout statute.

Appellees argue that since the burden of proof is placed on appellant by § 11144 of Pope's Digest to show that all persons running the train maintained a proper lookout and that since it failed to discharge such burden the trial court correctly refused appellant's request for a directed verdict, and the judgments should be affirmed.

Appellees' contention rests upon the testimony of engineer Dunnegan, who testified that the train involved in the collision was a passenger train composed of seven passenger coaches and two baggage coaches; that the power used to propel the train was supplied by "two Diesel engines" (connected) "back to back" that he (Dunnegan) "was operating the engine in the control room . . ." Appellees argue that the fact that the train was being propelled by two engines of necessity suggests that two engine crews were actually engaged in running the train, and that since only one engine crew (Dunnegan and his fireman) testified that they were keeping a proper lookout, and that no member of the engine crew on the other engine testified appellant failed to discharge the burden of showing that all persons running the train were keeping a proper lookout.

It is true the engineer (Dunnegan) testified that the train was being propelled by "two Diesel engines," which suggests the idea of two crews, and had there been two steam locomotives operated together in the fashion frequently referred to as a "double header" there doubtless would have been two engine crews engaged in running the train. Here, however, the train was being propelled not by two steam locomotives but by two Diesel engines, and the engineer...