Kansas City Southern Ry. Co. v. Leslie

• Decision Date: 06 April 1914
• Docket Number: (No. 244.)
• Citation: 167 S.W. 83
• Parties: KANSAS CITY SOUTHERN RY. CO. v. LESLIE.
• Court: Arkansas Supreme Court

167 S.W. 83

KANSAS CITY SOUTHERN RY. CO. v. LESLIE.

(No. 244.)

Supreme Court of Arkansas.

April 6, 1914.

COPYRIGHT MATERIAL OMITTED

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

Action by Sam E. Leslie, administrator of Leslie A. Old, deceased, against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed:

This is a suit brought by the appellee as administrator of the estate of Leslie A. Old, deceased, for the benefit of the widow and her infant child, under the federal Employers' Liability Act and its amendment of April 5, 1910. The suit is brought for the loss of contributions to the widow and child by reason of the death of Old, and also for the conscious pain and suffering which Old endured before his death, which, under the act, survived to the administrator for the benefit of his widow and child.

The complaint, after alleging the incorporation of the appellant, and that it was engaged in interstate commerce, and after alleging that Leslie A. Old was in the employment of appellant as swing brakeman, actually engaged at the time of his injuries as such brakeman on a train that was being operated at the time in interstate commerce, alleged: "That his work required him to look after and pass over the tops of the cars composing the middle section of said train. That there were two box cars or refrigerator cars of equal height, and that immediately in front of these two cars was an oil tank car. That the floor of this car was seven or eight feet lower than the runway on top of the refrigerator car immediately in its rear. That there were no ladders or grabirons or handholds on the end of the box or refrigerator car to enable the brakemen to safely get from the top of the box or refrigerator car onto the platform or runway of the oil car immediately in front of it, except a ladder or grabiron down the side of the refrigerator car some distance from the end thereof. That the absence of these grabirons or handholds or ladders down the end of the box or refrigerator car made it unnecessarily hazardous for the brakemen to pass from the top of the box or refrigerator car to the platform or walkway of the oil tank car immediately in front of it. That there were no grabirons or handholds on the end of the oil car or tank car immediately in front of the refrigerator car, or any other appliances thereon to enable a brakeman in passing from the rear car to the oil car to hold to and steady himself while making the passage."

The complaint further alleged "that the engineer of said train was negligent, on the occasion of deceased's injury, in permitting his air to become out of order or in carelessly manipulating his air in such manner that said train was caused to jerk violently and unusually, which jerking contributed to the injury of plaintiff's deceased as aforesaid." There were further allegations in the complaint to the effect that the defendant was negligent, in making up said train, "in carelessly and negligently placing the oil car or tank next to the box or refrigerator car, knowing the platform or walkway on the oil car was some six or seven feet lower than the top of the box or refrigerator car, without providing some means or appliances on both the refrigerator car and the oil car which would enable brakemen to get from one to the other without any unnecessary danger." There is an allegation to the effect that the acts of negligence complained of were unknown to plaintiff's deceased, and by reason of his inexperience as a brakeman he was unable to and did not appreciate the dangers arising from said acts of negligence. There was a further allegation to the effect that "by reason of the absence of such handholds or ladders on the end of said box car, or other proper appliances which would have enabled deceased to safely go from the top of said box car to said oil car, concurring with the unusual and violent jerking of the train as it passed out of Page, deceased was unable to get from the top of the box car to the oil car, and while in the effort to do so, and while in the exercise of due care himself, he was thrown between the ends of said cars, or fell between the ends of said cars," and received the injuries which were specifically described. The complaint concluded with a prayer for damages on account of pain and suffering in the sum of $10,000, and for loss of contributions in the sum of $15,000, and for a judgment in the total sum of $25,000.

The appellant in due time and form filed a petition and bond for removal of the cause to the federal court, which was overruled. The appellant also moved to have the complaint made more definite and certain, which motion was overruled. Appellant then demurred, and its demurrer was overruled. Appellant then moved to strike out certain portions of the complaint, which motion was overruled. Appellant then answered, denying the allegations of the complaint and setting up the defense of contributory negligence. The appellant then filed a motion for a continuance, which was overruled. The appellant duly excepted to the rulings of the court on its motions and in overruling its demurrer.

The cause was then sent to the jury, and the testimony developed the following facts, as stated by counsel for appellee, which we find to be substantially correct:

On the forenoon of March 24, 1913, Leslie A. Old was sent out from De Queen, Ark., as middle brakeman on appellant's through freight train to Heavener, Okl. Old was called for service on the train about an hour before it left De Queen. Appellant's road traverses a mountainous country, and there were some heavy grades from Mena north. Before descending these grades it was necessary for the brakemen to go over the tops of the cars and turn up the retainer valves on from 75 to 80 per cent. of the loaded cars in order to assist the engineer downgrade, and after the descent was made it was then necessary for the brakemen to again go over the tops of the cars and turn the retainer valves down. It was upgrade from Mena to Rich Mountain; and from Rich Mountain to Page, where the injury occurred, it was downgrade. From Page two miles north it was upgrade and then north downgrade set in. The train arrived at Page at 8 o'clock at night and stopped there to get orders for future movements. Old and the head brakeman and the conductor all went in the station house at Page to secure their orders. They then left the station house to take up their duties on the train. The head brakeman came out first with orders for the engineer and proceeded to the front end of the train. Then the conductor came out and walked to the south end of the platform, about 80 feet from the station, and stopped. By this time the train had started slowly forward. Old passed the conductor, with his lantern, going south, and a very short time thereafter the conductor saw some man with a lantern climb up on the train about 80 feet south of him and from the point where he saw Old go. As the train moved slowly along a man with a lantern on top of the train, going north, passed the conductor. The car that the man was on was the second car in the rear of the tank car. As the train moved out, there was a violent and unusual jerking of the cars; two jerks being especially noticeable. Just after the last heavy jerk, some one was heard to cry out, "Oh! Oh!" as if calling for help. After the train passed out, a witness whose attention was attracted by the unusual jerking of the train went out on the track to discover what was the cause of the jerking, and 95 yards north of the front door of the station he found Leslie Old lying on the track between the rails with both legs cut off between the knees and the feet, one shoulder crushed and mangled, part of the left hand crushed off, and skin knocked off his head. Some 15 or 18 feet south of where he lay his lantern was found lying on the track between the rails, with the broken globe lying around it. About 7 feet north of the lantern blood and small pieces of bone were found on the rail nearest the depot, and pieces of bone and blood were also found between this point and where the deceased lay. There were no signs of blood or bones anywhere else.

The two cars immediately in the rear of the tank car complained of were S. F. R. D. cars, of the same type and height. The tank car was a large iron tank set upon a frame in the nature of a flat car, and that part of the floor of this car between the tank and the outer edge was the only walkway or passageway over this tank car. The tank car had side rails on the outer edges of the side of the car which lacked 24 inches coming to the end of the frame of the car. The only appliances furnished the brakemen to pass from the top of the S. F. R. D. car to the tank car was a side ladder on the end thereof. One had to step from this side ladder onto the end of the tank car and grab to the end of the side rail on said car. From the side ladder to the nearest end of the side rail was about 5 feet. There was no end ladder on the S. F. R. D. car and no grabirons on the end of that car except down near the bottom of the car, which was used by the brakemen in coupling and uncoupling cars. There were no end ladders or grabirons on the tank car at all except on the sill below the floor. There was nothing on the end of the tank car for the brakemen to hold to while making the passage except the end of the side rail. It was necessary for brakemen, in passing from the sideladder on the S. F. R. D. car to the tank car, while the train was in motion, to release his hold on the former before he was able to secure a handhold on the railing on the tank car.

It was shown that the train would have to go a quarter or a half mile after starting before it could get under good headway. The appellant excepted to the rulings of the court in admitting and excluding testimony. The appellant presented 97 prayers for instructions. Of...