Little Rock & Ft. S. Ry. Co. v. Voss

• Decision Date: 02 January 1892
• Parties: LITTLE ROCK & FT. S. RY. CO. v. VOSS.
• Court: Arkansas Supreme Court

18 S.W. 172

LITTLE ROCK & FT. S. RY. CO. v. VOSS.

Supreme Court of Arkansas.

January 2, 1892.

Appeal from circuit court, Crawford county; HUGH F. THOMASON, Judge.

Action by Henry Voss, as administrator of the estate of William Voss, deceased, against the Little Rock & Ft. Smith Railway Company, to recover damages sustained by the next of kin of deceased on account of his death. Verdict and judgment for plaintiff for $6,500. Defendant appeals. Affirmed.

Dodge & Johnson, for appellant. A. S. McKennon and W. L. Terry, for appellee.

HUGHES, J.

This is an action by the appellee, Henry Voss, as administrator of the estate of his brother, William Voss, deceased, to recover of the appellant damages sustained by the next of kin of the deceased, on account of his death, which was caused by the derailment of a freight-engine drawing at the time a freight train of 14 loaded and 8 empty cars upon the track of appellant, and of which engine the said William Voss was at the time in charge, as a locomotive engineer in the employment of the appellant. The accident occurred at about 5 o'clock and 15 minutes A. M., on the 15th day of January, 1889, about one mile and a half west of Ozark, in Franklin county, and about 300 yards west of a deep cut, where the track of the railway runs around the side of the Ozark mountain, and between the mountain and the Arkansas river. The train was going west at the time, running from 9 to 17 miles an hour. The night was dark and rainy. The engine was a powerful Mogul, in good condition, easily handled, and carried a head-light that shone on the track about 100 yards in front and across the entire right of way of the road, which extended for 50 feet from the center of the track on each side of it. The immediate cause of the derailment of the engine was an obstruction upon the track consisting of earth and shale, which was brought down the side of the mountain by the sliding of a large rock, which had slid down the side of the mountain, and was lying within two or three feet of the track early on the morning of the wreck. The engine ran into the obstruction, left the track, and rolled down the inclination towards the river, and crushed and killed the engineer. The complaint alleges, substantially, that, for a long time prior to this occurrence, the defendant's track and road-way at the place indicated had been, and was at the time, in an unsafe condition, on account of the dangerous position and proximity thereto of the said rock, which was so insecure as to jeopardize the safety of said road-way and track; and that this could have been discovered and known by the defendant by the exercise by it of ordinary care and diligence, and was in fact known to it at the time. The answer of the appellant denied the material allegations of the complaint, and averred that the deceased carelessly ran his engine into the obstruction on the track, and that his death was caused by his contributory negligence; and denied that the obstruction was caused by the sliding of the rock, but averred that it was caused by the wet condition of the earth.

There was evidence for the plaintiff which tended to show that this large stone, which slid down the mountain side, onto the railway of the appellant, brought down with it the earth and shale that formed the obstruction that caused the derailment of the engine; that it was 6 or 8 feet wide, 10 or 12 feet long, and from 1½ to 3 feet thick; that before it came down it was situated on the side of the mountain about 50 feet from the track of the road, and that it rested at an angle of about 45 deg.; that one end of it was imbedded in the earth several feet, the end towards the railway being uncovered and exposed; that it rested on a bed of rotten, crumbling shale and earth; that its position had been observed by and was known to some of the witnesses for a long time before the catastrophe, and that they regarded it as dangerous; when it rained, the water, running down the mountain side, washed the rotten shale from under it; that when this was gone there was nothing to prevent it from sliding down the mountain side on the road-way of appellant. There was evidence also tending to show that Kyle, the foreman of section 18 on the appellant's road, within which was the place of the wreck, stated to one of plaintiff's witnesses, on the morning of the wreck, that he had observed the dangerous position of the stone on the side of the mountain before the wreck, and called the attention of the road-master of appellant to the same, and suggested that the stones along the mountain side were dangerous, and ought to be removed. There was testimony for the appellant which tended to show that, some years before the wreck, it had had the mountain side above the point of the accident carefully inspected, and had had removed all stones that appeared to be dangerous; that the large rock referred to had been observed by the employes of the road, and that they did not regard its position as dangerous; that it had exercised reasonable diligence to prevent accidents on the road from landslides; that the engineer could see this stone when on the mountain side, from his train on the road, and might have known of its situation by making examination of it; that he ought to have known the road at that place was liable to be obstructed by land-slides; that a few miles east of the place where the wreck occurred the conductor of the train on that night cautioned the engineer to run slow, and keep a close lookout for obstructions on the track, on account of the fact that the night was dark and rainy. The testimony for appellant tended to prove, also, that, going west, an obstruction on the track where the wreck occurred could be seen from a distance from 80 yards to 1,265 feet before reaching it; that, if the engineer had been keeping a steady lookout, he could have seen the obstruction in time to have "slowed up" his train, and prevented the derailment of the engine; that the usual speed of freight trains was about 17 miles per hour; that at the time of the wreck the train was running about 10 miles an hour; that on such a night, and at such a place as that part of the road where the derailment occurred, the speed of 10 miles an hour was imprudent, and that it should not have been over 6 or 8 miles an hour; that running from 9 to 11 miles an hour, with the engine under control of William Voss, the engineer, and the ordinary appliances for stopping a train that were in use on that road, if the engineer had been keeping a close lookout, would have been able to have slowed up the train in time to have prevented the engine from being thrown from the track; that the track-walker had patrolled that part of the road that morning, and returned between 2 and 3 o'clock A. M. past the place of the wreck, and that there was then no obstruction there upon the track; that "the distance in which a freight train can be stopped depends on the grade, the condition of the track, heft of the train, and a great many things;" that the brakeman heard the whistle only a moment before the engine left the track; that the conductor heard no whistle for brakes; that no record of the speed of the train was kept; that the engine was in the forward movement and the throttle was open after the wreck.

The court gave the following prayers asked by the plaintiff, over the defendant's separate objections: "(1) The court instructs the jury that if they believe from the evidence in this case that the defendant railway company employed the plaintiff's intestate, William Voss, as engineer upon its line of railway, it assumed a duty to him to construct and maintain its road-bed and road-way in a reasonably safe condition, so as not to unnecessarily enhance the dangers attending upon the employment; that said William Voss, in entering such service, assumed the natural risks of this employment, but did not assume that character of risk that might arise from the negligence of the railway company, if there was any, in constructing or maintaining a defective road-bed; and, if the jury believe from the evidence in this case that the plaintiff's intestate was, without any fault or contributory negligence on his part, killed at the time and in the manner charged in the plaintiff's complaint, and that said death was caused by the defective condition of defendant's road-bed or road-way, and that such defective condition was known, or by the exercise of reasonable care and diligence on its part could have been known, to defendant, the jury should find for the plaintiff. (2) The court instructs the jury that when a servant of a railway company has knowledge of the dangerous character and defects of the road-bed or road-way where he is required to run, and voluntarily incurs the risks of performing the labors of his employment therein, he cannot recover on account of any injuries thereby sustained; but a servant is not required to inspect his employer's road-bed or road-way to see whether or not there are latent defects to render its use more than ordinarily hazardous, but is only required to take notice of such defects or hazards as are obvious to the senses. The fact that he ought to have known of the defects, if he had examined, or that he had the means and opportunity of knowing of them, will not preclude him from a recovery, unless he did in fact know of them, or in the exercise of ordinary care ought to have known of them. (3) The court instructs the jury that the master, although not to be held as guarantying the absolute safety or perfection of the machinery or other apparatus provided for his servants, is bound to observe all the care which the exigencies of the situation reasonably require in furnishing instrumentalities reasonably safe for use. (4) The court instructs the jury that contributory negligence is a matter of defense. It is not presumed, but must be proved; and the burden of proving it rests upon the defendant, unless it...