Midland Valley Railroad Company v. Lemoyne

• Decision Date: 27 May 1912
• Parties: MIDLAND VALLEY RAILROAD COMPANY v. LEMOYNE
• Court: Arkansas Supreme Court

148 S.W. 654

104 Ark. 327

MIDLAND VALLEY RAILROAD COMPANY v. LEMOYNE

Supreme Court of Arkansas

May 27, 1912

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon, Judge; affirmed.

STATEMENT BY THE COURT.

Stacey Lemoyne was killed by one of appellant's cars in its yards at Tulsa, Oklahoma, on the 23d day of May, 1910. On the 20th of January, 1911, Nellie B. Lemoyne, 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 Arkansas, upon the estate of her deceased husband.

On the 10th of April, 1911, she brought this suit in Sebastian County, Arkansas, against the appellant, alleging that Stacey Lemoyne, while in the employ of appellant as yardmaster at its yards in Tulsa, Oklahoma, 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 thirteen 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 didn't 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 didn't 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.

Witness Dollie Jones testified that she was twenty-eight 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 (whom 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 didn't 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 ten minutes that he was in there before the train moved. He didn't make any motion with his hands. She didn't hear him call to the engineer to move the train; didn't 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 cowcatcher 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 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. The two front wheels ran over him. The south wheels of the car didn't get to him. The train stopped sudden after it run over him when he hallooed. She saw the wheels of the car press him down. He was standing up with both of his hands on the coupler, and was working at that with his face towards the north. It pressed him down face foremost. This occurred at the south end of the crossing. Witness was standing on the east side of the track and on the south side of the street, just opposite the south end of the plank crossing. When she first observed the cars and engine, they were coming from the south. There were box cars on the track close to where witness was standing, south of her and also north of her. She could not and did not see any one at any considerable distance south of her before he got right in front of her. She didn't know the position Lemoyne was in until he got right in front of her. The box car to the south prevented her from seeing him before that time. He was walking along with the train. The train was not moving very fast, but more rapidly than he was walking. The matters and things that she testified about occurred after the train stopped. The little girl (Grace McKeehan) was standing not very far, "kind o' behind" witness. No one else saw the accident that she knew of; didn't see any one else there.

Witness Taylor testified that he was engineer in charge of the engine at the time of Lemoyne's death. "There were three cars attached to the engine. Lemoyne got on the ladder of the second car from the engine and gave me a signal. He was going to kick the third car, the farthest car west from the engine up the main line, and kick it in on the house track. He gave me this signal while he was standing on the ladder of the car. He had hold of the ladder with one hand, and took hold of the pin-lift lever with the other hand, and gave me a stop signal with his foot. After seeing that he did not have the pin lifted, I did not get entirely stopped until he jumped off the cars on the ground and...