Memphis, Dallas & Gulf Railroad Co. v. Steel

• Decision Date: 14 April 1913
• Parties: MEMPHIS, DALLAS & GULF RAILROAD COMPANY v. STEEL
• Court: Arkansas Supreme Court

156 S.W. 182

108 Ark. 14

MEMPHIS, DALLAS & GULF RAILROAD COMPANY v. STEEL

Supreme Court of Arkansas

April 14, 1913

Appeal from Pike Circuit Court; Jefferson T. Cowling, Judge affirmed.

Judgment affirmed.

J. W Bishop and Sain & Sain, for appellant.

1. The damages must be the natural and proximate consequence of the injury. 3 Hutch. on Car., § 1430; 70 N.E. 205; 105 U.S 249; 7 Wall. 244; 94 U. S. A. 469; 43 N.W. 513; 74 Wis. 53; 32 Me. 946; 40 Am. St. 724.

2. Everything possible was done to prevent the injury. 69 Ark. 402; 77 Id. 157; 56 Id. 252. The want of care did not contribute to produce the injury. 78 N.W. 598; 53 Am. St. 391; 81 N.J.L. 661; 80 A. 495; 25 Am. & E. Ann. Cases, 525.

3. The appellee assumed the risk by accepting a free pass. 82 Ark. 441; 192 U. S. A. 44; 24 S.Ct. 515; 2 Hutch. on Car. 1075.

4. Appellee's instructions were erroneous, and appellant's requests should have been given. Appellant could relieve itself from responsibility by showing the injury was an accident it could not prevent. 34 Ark. 613; 33 Id. 816.

Steel, Lake & Head, for appellee.

1. Defendant was guilty of negligence. 3 Hutchinson on Carriers, §§ 1413, 1415; 89 Ark. 574.

2. Appellant did not specifically object to the instructions asked and given. 83 Ark. 61-71.

3. Appellee was a passenger. 82 Ark. 441; Hutch. on Car., § 1004.

4. The instructions were correct. 51 Ark. 459.

5. The verdict is not excessive. 88 Ark. 12.

OPINION

SMITH, J.

The appellee began this action in the Pike County Circuit Court, alleging substantially the following facts as constituting his cause of action. That the defendant is a railroad corporation, organized under the laws of this State, owning and operating a line of railroad from Ashdown in Little River County to Murfreesboro in Pike County in said State and is a common carrier of freight and passengers for hire. That on the 5th day of December, 1911, plaintiff took passage on a mixed train from Murfreesboro to Ashdown, after having procured his necessary transportation; that he took his seat in the regular passenger coach, and when the said train reached Nashville, a station on said line, and while the same was standing on the main line, near the depot, and while the plaintiff was seated in said coach, the engine and cars were detached from the caboose and passenger coach, and with two or three heavy loaded cars were violently, wrongfully, negligently, and with unnecessary force backed against said caboose, attached to said coach, whereby appellee was thrown forward against the seat immediately in front of him, and was permanently and seriously injured; that the said injury was caused by the straining and wrenching of the muscles of the neck, back and lungs, and the pleural cavity, the exact nature of all said injuries, he is not able to state.

That by virtue of the said injuries, he was confined to his bed for ten days and detained from his place of business for twenty days and has suffered and will continue to suffer great mental and bodily anguish; and that he will continue to lose much time by reason of the said injuries so negligently inflicted upon him by said defendant. That said injuries were permanent; and that appellee had been damaged thereby in the sum of three thousand dollars.

The appellant, in its answer, denied that the plaintiff procured the necessary transportation and became a passenger; and denied that cars were negligently and with unnecessary force backed against the caboose, attached to the coach in which appellee was a passenger; and denied that he was injured permanently or otherwise. It further denied that he had been confined to his bed or detained from his business, or that he had suffered or would continue to suffer any pain and anguish on account of his alleged injuries. Denied that his injuries were permanent; or that he had been damaged in the sum of three thousand dollars, or any other sum.

Defendant further alleged that if appellee had received any injuries upon any of its trains that he was not a passenger at the time of his injuries, but was using a gratuitous pass, which he had voluntarily accepted and signed with the following limitations and conditions endorsed thereon: "By its acceptance and use any and all claims on this company, whether due to negligence of its agents or otherwise for injury to the person or loss of, or damage to, the property of the holder are waived and released. The holder further agrees not to use this pass in violation of any State or Federal law, and agrees to furnish proper identification whensoever requested. I accept the above conditions, and signed by appellee." And that by acceptance of the said gratuitous pass, appellee agreed to, and did release, appellant from any and all injuries to his person. That plaintiff's own negligence caused or contributed to his injuries if he received any; and that defendant is not liable for any alleged injuries claimed by the plaintiff, for the reason that he was at the time, and still is, suffering from tuberculosis, and should not have attempted to ride on a mixed train; and that he contributed to his own injuries in so doing.

The cause was tried before a jury and a verdict returned in favor of the plaintiff for the sum of five hundred dollars, and this appeal is prosecuted from the judgment pronounced thereon.

The evidence on the part of the appellee tended to show that he had taken passage on the local freight train at Murfreesboro for Ashdown; that the conductor looked at his pass, took its number and handed it back to him; and that the injuries occurred in front of the depot at Nashville. That the train stopped at Nashville to do some switching, but appellee remained sitting in his seat in the smoking compartment of the passenger coach; and that he had his feet resting on the seat in front of him, two seats being thrown together. The engine and all of the cars except the passenger coach and caboose were detached and taken up the road to do some switching. The caboose was immediately in front of the passenger coach, and the passenger coach was on the rear of the train. A Mr. Parks was sitting on the seat with appellee and the first they knew of any trouble was when they heard a yell and simultaneously felt the impact of the cars which had struck the caboose. Three cars which had been detached from the engine had been kicked down the track on the caboose and coach, which were standing still, striking the caboose and coach with a very great force. The appellee and Mr. Parks, who testified for him, stated that in all their travels, which were extensive--and that they had ridden much on mixed freight trains--that they had never known a car to strike another with such force. There appears to have been no real question about the force and violence of the impact, the more serious question being, whether or not appellant was guilty of any negligence in allowing it to occur.

The brakeman and conductor in charge of the switching, undertook to explain the violence of the impact and to show that they were guilty of no negligence in permitting it to occur. The brakeman testified that when the cars got within about two car-lengths of the coach and caboose, he attempted to slow them up so they would not make the connection very hard and make only the usual coupling; and that when he undertook to set the brakes, he found that they would not operate. That he used all of his strength and energy to stop the cars with the brakes, but that while he checked them some, he could not do so sufficiently. His explanation being as follows:

Q. Now, then, state to the jury what you found?

A. Well, the brake-staff that runs up and down the end of the car where the brakes attach to where it works, the carrying iron at the bottom, and this carrying iron sets at a certain distance from this brake right down at the bottom of this brake-staff, and in winding this chain around there it might only wind right on top of itself right around, and in winding up taking up the slack the second time there was a link caught against the carrying iron, the piece that held the lower end of the brake-staff in passing there was a link caught there between there and the carrying iron that wouldn't let it pass through. If the link had been up flat-ways it would have gone through. If the chain had been over flat-ways it wouldn't pass through.

The conductor discovered that something was wrong with the approaching cars when they were about sixty feet from him and he ran and climbed the ladder up the side of one of the cars, and just as he reached the brake, the collision took place before he could set the brake. The brakeman testified that he...