Little Rock & M. R. Co. v. Harrell

• Decision Date: 10 February 1894
• Citation: 25 S.W. 117
• Parties: LITTLE ROCK & M. R. CO. et al. v. HARRELL.
• Court: Arkansas Supreme Court

Page 117

25 S.W. 117

LITTLE ROCK & M. R. CO. et al. v. HARRELL.

Supreme Court of Arkansas.

February 10, 1894.

Appeal from Lonoke county circuit court; Robert J. Lea, Judge.

Action by Wallace M. Harrell, as administrator of the estate of J. C. Gist, deceased, against the Little Rock & Argenta Street-Railway Company and the Little Rock & Memphis Railroad Company for negligently killing deceased. From a judgment for plaintiff, defendants appeal. Modified.

The other facts fully appear in the following statement by BUNN, C. J.:

This action was instituted in the Lonoke circuit court at its January term, 1892, by the appellee, administrator, for the benefit of the widow and children of his intestate, J. C. Gist, against both the appellants, for the negligent killing of said Gist in a collision between their cars, in the city of Argenta, on the 26th day of November, 1890, laying his damages at the sum of $25,000. There was a trial; verdict and judgment for the full amount claimed; motion for new trial, made by each of appellants, overruled; exceptions taken; bill of exceptions tendered and signed, and appeal taken to this court.

Abstract of the Evidence.

On the day named the deceased took passage at the "L. R. & Ft. S. Railroad Crossing" on one of the cars of the defendant street-car company, en route to the city of Little Rock, and for some time rode standing on the rear platform of the car, when the street-car driver, according to his testimony, finding that deceased had gone as far as he (the driver) was permitted to carry a passenger who has not paid his fare, left the front platform, and went back to demand his fare of deceased. They seem to have had some conversation as to the payment of the fare to the opposite side of the river, rather than to the river only, and the driver returned to his post on the front platform, the mule attached to the car in the mean time moving on at a trot. Afterwards the deceased went into the car, and towards the front, and proposed to the driver to pay his fare if he could make the change for him, and the driver stepped back just inside the car to make the change, when they both seemed to have seen a freight train of the defendant railroad company backing across their track, and a collision impending, and the driver jumped off his car at the front, and the deceased jumped off at the rear, the backing train striking the street car, turning it around and upon the deceased, killing him almost instantly. It appears from the testimony that the track of the defendant street-car company runs on Newton avenue, one of the principal streets of Argenta, and the track of the defendant railroad company runs parallel to Newton avenue, and about 15 or 20 feet from the street-car track, some distance along the east side of the avenue, and then turns west and across it, going on in the direction of the "Oil Mills." The train of the defendant railroad company involved in the collision was composed of a switch engine and three freight or box cars, the engine moving forward, and pushing the three box cars in front of it. On the engine was an engineer at his post on the right side of the cab, a fireman on the left side, the manager of the train on the front end of the furthest box car from the engine, and a brakeman on the next box to the front one. The proof shows that they were required to station themselves, substantially as they were, so that the one on the front could observe obstacles on the track, and transmit signals back to the engineer, so as to control the movements of the train, and avoid accidents. The foreman of the train on the front car, when unable to give his signals direct, made them to the intermediate brakeman, who repeated them to the engineer, either directly or to the fireman, and he in turn to the engineer, according as the circumstances might dictate.

The following extracts from the statement of witnesses will perhaps best describe the incidents and actions of parties immediately preceding and leading up to the accident.

John D. Adams says: "I was foreman of the engine pushing the train when this accident happened. It was my duty to have controlled this train. I was on top of the furthest car from the engine, and controlled the movements of the train. There was another switchman with me, who was on the first car behind me, I think. I cannot say how far the street car was from the crossing when I first saw it. It was moving, and so were we. I gave no signal to stop until I saw the street car. We may have been one hundred yards from the crossing then, or not so far, and the street car was going about as fast as our train. The mule was trotting. We were perhaps running eight miles an hour. I saw nobody on the street car at all. I could see nobody on the front platform. I gave the stop signal as soon as I saw the street car. I did not run back on the car toward the engine, but stood still and hallooed to stop the street car. There was a man on the car between me and the engine, and he took my signal. I turned my head to see if the man next me had caught my signal. I saw that he had, and commenced repeating it. I do not know whether he was standing up or sitting on the side of the car. I think the other man ran back to the engine, and I think he hallooed. The other man on the car was a switchman. It was my duty to give signals to him when I saw obstructions, and his to repeat them to the engineer." And again he says: "I was foreman of the engine at the time of the accident. I was on the box car furthest from the engine. The engine was pushing three box cars ahead of it. I was on the right-hand side of the car. We had got from the main line, and were carrying these empty cars to the oil mill. I think the engineer blew his whistle. He always blows when he wants to run the crossing. About opposite the lumber yard, there, I gave a slow signal to indicate to the engineer to be careful in going to the crossing. At that time I had not seen the street car. We had gone a short distance when the street car showed up, and I could see no one on the front of it. As soon as I saw the street car I gave the danger signal to stop, and hallooed to the switchman. I also hallooed at the engineer, and to the street-car driver. I cannot say exactly how far I was away. I was on a moving train, and had my eyes on the street car. After I saw the street car, and gave the danger signal, I threw my head around, to see if the other switchman had caught the signal, to give it to the engineer. I saw he had, and kept my eye on the street car. Neither our train nor the street car was far from the crossing. I think we were just entering the curve, but I cannot be certain. The train stopped almost immediately after striking the street car. The car that struck the street car stopped on the crossing. When I gave the slow signal it was for a caution, and not for the street car. I believe the cars were running eight or ten miles an hour. I think they had checked up some at the time I gave the danger signal. It is customary to give a slow signal at this point in switching on that track. When I first gave the slow signal we may have been 150 yards from the crossing. We may have been 50 yards from the crossing when I gave the danger signal, but I cannot be positive. If the engineer had got the signal at the time I gave it, he might have stopped the train. It appears that when I was before the coroner's jury on the day after the accident I testified that the train was 200 feet from the street car when I gave the danger signal. I also testified that the train did not slow up as soon as it usually did. I gave the danger signal, and hallooed to the driver at the same time. In the Byers case I testified that I supposed we were in a hundred yards of the street-car crossing. I was hallooing at the street car, and signaling to the engineer. I could not see the engineer from where I was, nor could he have seen me, so that there was no chance of his taking the signal as soon as I gave it. It had to be repeated by the man behind me to the engineer. I looked back, and saw this man had taken my signal, and started to the engine with it. The fireman was on the inside of the curve, and could have a better chance to see me, though I do not know whether he could or not."

Henry Diebert says: "I was a switchman on the second car from the engine. In approaching the crossing, Adams, who was on the car farthest from the engine, gave me a slow signal some seven or eight hundred feet from the crossing, up by the lumber yard. He gave a quick signal to stop about at the point of the curve. I took it, and repeated it to the engineer as soon as possible. I got up and ran to the next car to the engine. I got a glimpse of the street car as I turned around. There was some steam escaping from a brake between me and the engineer on the engineer's side. We generally give a slow signal down by the lumber yard. That was two or three blocks from the crossing. I do not know whether the engineer could see me when I repeated the signal, as the cars were between us, but the fireman probably could. When the danger signal was given, the first part of the car was on the curve."

W. R. Johnson says: "I was the engineer on the train that had the accident. The train was going north to the oil mill, carrying some empty cars. We were probably running about four miles an hour. I blew for the crossing about the lumber yard, or may be a little on the other side. This is where we ordinarily blow for the crossing. The fireman was ringing the bell along the avenue. That is his business. The engine was headed north, and was pushing the cars in front of it toward the north, and I was on the right side. The first thing I knew of danger ahead was that the fireman told me there was a car on the track. I then reversed the engine, put on the brakes, and stopped the engine as soon as I could. I did not see Diebert. The first I saw of him was when we were about...