Midland Valley R. Co. v. Le Moyne

• Decision Date: 27 May 1912
• Parties: MIDLAND VALLEY R. CO. v. LE MOYNE.
• Court: Arkansas Supreme Court

148 S.W. 654

MIDLAND VALLEY R. CO. v. LE MOYNE.

Supreme Court of Arkansas.

May 27, 1912.

On Rehearing, July 1, 1912.

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Action by Nellie B. Le Moyne, administratrix, against the Midland Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Stacey Le Moyne was killed by one of appellant's cars in its yards at Tulsa, Okl., on the 23d day of May, 1910. On the 20th of January, 1911, Nellie B. Le Moyne, his widow, was granted letters of administration on his estate by the county court of Tulsa county, in the state of Oklahoma, and on the 1st day of April, 1911, she obtained letters of administration out of the probate court of Pope county, Ark., upon the estate of her deceased husband. On the 10th of April, 1911, she brought this suit in Sebastian county, Ark., against the appellant, alleging that Stacey Le Moyne, while in the employ of appellant as yardmaster at its yards in Tulsa, Okl., was killed through the negligence of appellant as follows: That defendant was engaged in operating a railroad in interstate commerce, and, while deceased was attempting to uncouple certain cars engaged in interstate commerce, he was run over and killed through the negligence of the defendant in failing to comply with the act of Congress as to automatic couplings; that the coupler at the north end of the second car, which deceased was trying to uncouple, was defective and dangerous on account of the link and pin being loose, broken, and disconnected, so that the coupler could not be operated by means of the lever; and that the coupler was so old and worn from use that the pin could not be raised by means of the lever, thereby making it necessary, in order to uncouple the cars, for the decedent to go between them. There was a second ground of negligence which it is unnecessary to set out. As a third ground, it was alleged in the complaint that the engineer in charge of the switch engine, knowing that decedent was between the ends of the cars, and without any signal from him, negligently and carelessly started the engine, thereby knocking deceased over and causing the cars to run over and injure him. The complaint set up that the decedent suffered great bodily pain and mental anguish for four hours from the time of his injury until his death. It also set out the names and ages of the decedent's three children who survived him, and embodied a count for damages for the benefit of the widow and the children as next of kin and also a count for damages for the benefit of the estate. Appellant filed a motion to abate the action because decedent was killed in the state of Oklahoma, and alleged that at the time of his death he was a citizen and resident of that state, and that plaintiff obtained letters of administration upon his estate in Oklahoma, and that the laws of that state governing the recovery of damages and distribution thereof were wholly different from the laws of Arkansas. The motion was overruled and exceptions saved. The appellant answered, denying the allegations of the complaint, and set up the defenses of contributory negligence and assumed risk.

Grace McKeehan testified that she was 13 years old. She saw the train run over decedent on the 23d day of May, 1910. The accident occurred on the second track from where she was standing. Dollie Jones was also standing there. Decedent was walking by the train when she first saw him. The train stopped before he went in between the cars. He went in between the two cars to uncouple them. He was not very long in there. His face was turned towards the north when he went in between the cars; the engine was towards the south. She was looking at him when he went in between the cars. His hands were uncoupling the cars. Both of his feet were between the tracks. She saw him while he was in there and up to the time the train moved. He made a motion before he went in. She did not see him make any motion with his hands while he was in between the cars. He made a motion with his hands when he was walking by the side of the train, before he went in. He raised his hand up, and witness thought he shook it. After he made that motion, the train stopped. After the train stopped, he went in there; but, after he got in, he made no motion with his hands to any one on the outside. Witness was looking at him all the time. She saw the wheels run over him. He fell towards the north; his face went down foremost. The first two wheels ran over him, the wheels on the side where witness was. The train stopped when he hallooed. A man took him out from under the cars after he was injured. They did not move him very far from the track; just moved him on the outside. From the point where he went in between the two cars it was not very far to where the witness saw him make a signal by shaking his hand when he was walking along by the side of the train. It was not very far from where the train stopped to where she saw him make the signal by shaking his hand. There was a box car on the track next to the witness, on the south. She could not have seen the train and a man walking by the side of it very far on account of the box car on the track next to her on the south. He made the signal about the time he got in sight of witness, and then the train stopped. He was run over, witness thought, at the south end of the plank crossing at Seventh street. Witness was on the east side of the crossing and on the south side of the street, where she was standing waiting for the train to get out of the way so she could cross. She was opposite to the south end of the crossing. Witness saw the decedent from the time he got in sight of her until he was run over. The decedent, at the time the train pressed him down, was trying to uncouple the car with his hands.

On cross-examination witness stated that she saw the man who was hurt just before he went in between the cars make a motion with his hand. She did not know exactly what kind of a motion it was; didn't know whether it was a motion to kick a car or a motion to stop. Between the time when witness first saw decedent and the time he was knocked down it was a longer length of time than it would take for a man to step in between the cars and put his hands on the coupler, but not much longer. Witness did not think it was as long as 10 minutes. While the man who was hurt was between the cars, he may have made a signal and witness not have seen it. His hands were moving practically all the time he was in between the cars. Witness did not remember how far the train moved after he was run over. Only two wheels ran over him. They picked him up from about the middle of the car. The car did not move more than a half a car length. Witness just noticed him casually. Her testimony was based upon the occurrence as she then remembered it. She did not think there was a man on top of the car that ran over the decedent; she did not know whether there was a man on top of that car. Witness stated that she knew that decedent went in between the cars, and she was pretty sure about his trying to uncouple the cars, for she had seen them uncouple cars before. She stated it as a fact that the man was trying to uncouple the cars because he went in between the cars. She had lived around the crossing a year or two, and had seen them very often go in between the cars when they uncoupled them. They always went in between the cars when they uncoupled them. Decedent might have gone in there to examine the coupler. His hands were in motion where the two cars met together. She knew he was trying to uncouple the cars from where he had his hands. She could not tell the court whether his hands were on the drawbar, or whether they were on the knuckle, or pin, or brake rod. She did not know, as a matter of fact, whether decedent was merely inspecting the coupler or whether he was trying to uncouple the cars.

Witness Dollie Jones testified that she was 28 years old; lived three blocks from the crossing where the injury occurred. She was present and saw the accident. There was no one else standing there at the crossing near her when the man was injured but a little white girl (which witness identified as Grace McKeehan), whose testimony has just been stated. Witness could not tell how many feet she was from the young man when the train run over him, but stated it was not over five or six. She was standing by the side of the east track, right up to the east rail of the next track to the track on which the injury occurred. She was right in front of it and saw it. They were switching off cars, and witness had to wait there at the crossing before she could get across, and while standing there the man was walking on the ground as the train was going along, and when it stopped he went in between the two cars. She did not know what he was doing, but his hands were on the back part of the car where they couple together. The cars had stopped when he went in between them. He went in between the rails, with both of his feet over inside the rails, and his hands were on the coupler. It could not have been more than 10 minutes that he was in there before the train moved. He did not make any motion with his hands. She did not hear him call to the engineer to move the train; did not hear him say anything. There were about three or four cars attached to the engine. The engine was at the south end of the cars. The cow-catcher was turned towards the north; the front end was attached to the cars. Witness saw the decedent go between the two cars to the north. He was attempting to uncouple the two cars. He was aiming to cut off two cars and detach two cars. He was between the second and third cars when he went in between them. His face was towards the engine. While he was in there, the train moved towards the north. Witness saw the wheels on the south side, next to her, run over him; that was on the east side. The wheels on the east side ran...