Kansas City Southern Ry. Co. v. Morris

• Citation: 98 S.W. 363
• Parties: KANSAS CITY SOUTHERN RY. CO. v. MORRIS.
• Decision Date: 19 November 1906
• Court: Supreme Court of Arkansas

98 S.W. 363

KANSAS CITY SOUTHERN RY. CO. v. MORRIS.

Supreme Court of Arkansas.

November 19, 1906.

Appeal from Circuit Court, Benton County; John N. Tillman, Judge.

Action by R. S. Morris, as administrator of Jacob Webster, deceased, against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

S. W. Moore and Read & McDonough, for appellant. E. P. Watson, for appellee.

BATTLE, J.

This was an action brought by R. S. Morris, as administrator of Jacob Webster, deceased, against the Kansas City Southern Railway Company to recover damages on account of the death of his intestate. He alleged in his complaint: "That the defendant maintained, on the 2d day of May, 1904, on its line of railroad, at the city of Siloam Springs, in Benton county, in this state, a passenger and freight depot and a large switchyard and many side tracks of railroad, and had a foreman and laborers employed to work on said yard and side tracks. Mike Kelley was the foreman, and Jacob Webster was one of the laborers working under his orders and supervision. That while so employed it was the duty of Webster to go over and across the said tracks and switches. That on the morning of May 2, 1904, there were standing on the switch in said yards farthest west from the depot building two large furniture cars. That, while the engineer and conductor were switching on the track next to the depot building, Kelley directed Webster to get a small piece of timber to be used in raising the frog of the railroad track in the switchyards. That upon the west of the tracks upon which the two cars were standing was a lumberyard. That Webster passed behind the two cars on the south side to get a piece of lumber from the lumberyard which was near to the track on which the two cars were then standing. That at the time he passed in the rear of said cars, or to the south of them, the locomotive and train that was then being formed was on the track next to the depot and to the east of the track upon which the two cars were standing, and from where the two cars were standing after Webster had gone to the west of them, in the performance of his duties at the time as a section-hand, he could not see the engine and train of cars on the track next to the depot and east of where he stood. That, after obtaining the piece of timber he was sent to get, he started to recross the track on which the two furniture cars were standing and to go to the place he was directed to take the timber to be used. That, in order to return to the place, he had to recross the track upon which the two cars were standing. That he had only been on the west of the track after he crossed it to the lumberyard not exceeding two minutes. And when he crossed to the west side the two cars were standing, still disconnected as aforesaid. That, in attempting to cross the track on which the two cars stood, he crossed on the tracks south of the last car. That when he crossed to the west the locomotive and train that were then being made up headed north and were on the track next to the platform and depot, and to the west of the depot. That, when Webster started to cross the track back to the direction from whence he came, he started to cross about 20 feet from the end of the south car on the track. That when about half way across the track the car next to him was driven with force and rapidity by the locomotive under the control of the engineer striking the same so as to drive the car against and over Webster, and to knock him down and mortally injure him, from which injuries then received he died in about three hours.

"The plaintiff states that, at the time his intestate was struck and killed by the defendant's act, he was in the discharge of his duty as a servant of the defendant.

"The plaintiff states that, at the time, the defendant's locomotive, operated by its engineer and under the direction of said engineer and the conductor in making up said train of cars, and which engine and train of cars was backed over the body of the deceased, was run and operated in the most careless and negligent manner; that without warning or signal given by the engineer he backed the engine under his control in such an unskillful manner and with such rapidity in the switchyards as to force the two cars aforesaid together and drive them over 100 feet from where they then stood; that, had the engineer and conductor done their duty as the servants of the defendant company, the cars would not have been driven over Webster, but, on account of their negligence and disregard of his rights as a servant of the company acting at the time under the orders and direction of the company's section foreman in the yards of the company, he, Webster, lost his life without any act of carelessness or negligence on his part.

"The plaintiff stated that the said Jacob R. Webster at the time of the striking and death as hereinbefore stated was a married man; that he left him surviving a wife, Mary R. Webster, who is of the age of 50 years; that he left him surviving the following named children: Oscar F. Webster, aged 19 years, Ida S. Webster, aged 17 years, Homer F. Webster, aged 13 years, Earl H. Webster, aged 10 years, and Inatia Webster, aged ____ years; that at the time of his death Jacob R. Webster was 51 years of age; that at the time of his death he left an estate of about the value of $150; that he and his family were dependent upon his daily labor for a support; that without his support his family as hereinbefore named could not be fed, clothed, and educated, and that his labor was their sole means of support."

He asked for judgment for $1,920 damages, and all other proper relief.

The defendant specifically denied each allegation in the complaint, and pleaded contributory negligence of the deceased.

In a trial before a jury the plaintiff recovered a verdict for $1,500, and the defendant appealed.

H. H. Canfield, a physician, testified that Webster was struck by the cars of the defendant, and that the last time he saw him he was in a dying condition. He testified that he was about 50 years old; that he (witness) was familiar with the tables of mortality, having been an examining physician for insurance companies for 10 years; and that Webster's expectancy of life was between 19 and 20 years. The defendant moved to exclude this testimony because it was incompetent and not responsive to any allegation in the complaint, and the court overruled the motion.

Defendant offered to exhibit photographs of the scene of the accident in which Webster lost his life, as evidence, and the court refused to allow them to be so used, and it saved exceptions.

J. E. Tincher testified that he was the first man to go to the relief of Webster after he was hurt; that Webster was lying with his limbs below his knees across the rail of the railroad track and his body was lying outside; that he pulled him off the track. While in this position, while lying near the...