Mills v. Roberts

• Decision Date: 04 November 1918
• Docket Number: 214
• Citation: 206 S.W. 751,136 Ark. 433
• Parties: MILLS v. ROBERTS
• Court: Arkansas Supreme Court

206 S.W. 751

136 Ark. 433

MILLS v. ROBERTS

No. 214

Supreme Court of Arkansas

November 4, 1918

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

STATEMENT OF FACTS.

This action was brought by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained by the appellee while he was in the employ of the appellant as a brakeman. The appellee alleges in substance that on the 6th day of April, 1916, the appellant, as receiver of the Ft. Smith & Western Ry. Co., was operating the railroad and engaged at the time in the carriage of commerce from Oklahoma to the State of Arkansas and other States; that when the train on which appellee was employed as brakeman arrived at Weleetka, Oklahoma, a station on the railroad, it became appellee's duty to throw and adjust the switch at the station so as to switch out of the train a car onto the sidetrack in order to leave the car at the station; that the employees of the appellant had wrongfully and carelessly left a coal car on the switch track at Weleetka, more than a car length nearer the east end of the switch track than it should have been placed to be reasonably safe for switchmen in leaving a train on the main line track to do switching on the side tracks; that the car on the passing track was two car lengths from the switch point, and it should have been at least three car lengths back from that point to be in the clear; that appellee did not know that the car had been left on the side track at the time; that appellee, in leaving the locomotive for the purpose of throwing the east end switch at the station, struck the car so placed on the side track with great force and violence which caused him to be knocked down and run over by the train and severely injured. The nature of his injuries is fully described in his complaint.

The appellant denied the allegations of the complaint as to negligence, and set up the affirmative defenses of contributory negligence and assumed risk on the part of the appellee. The appellant concedes that the appellee was engaged in interstate commerce at the time of his injuries and that his cause of action arose under the Federal Employers' Liability Act. The issue presented is therefore, whether or not appellant is liable under that act.

Appellee testified that when the train on which he was employed as brakeman arrived at Weleetka about 3 a. m. on April 6, 1916 all cars in the train were loaded. The conductor instructed the appellee to set out the head car in the train onto the siding. When the train was pulling into Weleetka, appellee got out into the deck of the engine. It was dark, and the train was running 2 or 3 miles an hour. When he reached the place to set out the car, he stepped off and hit the car on the passing track. The appellee struck the car with head and arms just as he stepped on the ground. He did not know the car was on the side track when he got off the engine. The car was not supposed to be there. The track was supposed to be clear. It was about 10 feet between the rails of the main line and side track where appellee got off the engine. The side track was connected with the main line at both the east and west ends, and was about a quarter of a mile long. There was a switch at each end. The appellee did not see any other cars on the side track. The car appellee struck was a coal car. The engine was equipped with an electric head-light. From the point where appellee started to step off, the head-light would not enable appellee to have seen the car on the siding. Appellee had a lantern when he got off of the engine, and his first knowledge of the presence of the car on the siding was when he hit it. Appellee passed the track at Weleetka 12 or 16 times a month; had picked cars up on the passing track at Weleetka and may have set them out there. The night was cloudy. The electric head-light on the engine would reach considerable distance. The appellee had been riding on the fireman's seat in front of the fireman for 40 minutes before he got down. He did not look before reaching the point where he got off, to see whether any obstructions were there. The step to the engine was about 18 inches above the ground. Appellee stepped about 18 inches out in the direction the train was moving. The engine cab was within 2 feet of the car appellee struck. These coal cars are from 36 to 40 feet long. The fact that the train was running slow was the only indication appellee had of the place where he was to get off. Standing on the gang-way of the engine appellee was on a level with the bottom of the coal car. Box cars are from 14 to 15 feet from the ground to the top, and coal cars from 7 to 8 feet. Appellee was asked if he couldn't have seen the car he struck for a distance of 30 feet, passing along within 2 feet of it if he had looked, and answered he did not know. It is customary for a person in getting off a train going 2 or 3 miles an hour to get off in the direction the train is moving.

A witness, M. V. Russell, testified that he was a brakeman and switchman for the Missouri Pacific Ry. Co., and had had 11 1/2 years experience in railroad work. In witness' opinion the cars should ordinarily be placed from 75 to 100 feet back on the side track from the frog. Seventy-five feet from the point of frog is the standard. If a switchman got off the engine and stepped into a car, witness would say that the car on the side track was not at the right place to make it safe. After a car reaches a place where the tracks are parallel, it makes no difference how far down track car is placed. It would be just as safe at one place as at another. With an electric headlight on an approaching engine, a car upon the side track with space between main line and the siding 9 feet in the clear could be seen from the engine between 1/2 and 1/4 of a mile. A car may be seen 10 or 15 feet distant away by a brakeman with a lantern in his hand. It is the duty of brakemen to watch out and see what is on the tracks. The standard distance of passing tracks from the main line is about 9 feet and 6 inches.

Oscar Allstrand, a witness on behalf of the appellant, testified that he was a roadmaster on the railroad appellant was operating; that he had been in the service about 22 years and was familiar with conditions at Weleetka on April 6, 1916. The distance between main line and passing track is 14 feet from center to center at the point where side track parallels the main line, called the clearance point. It is 72 feet from the switch point to point of frog. Switch stand is opposite switch point. It is 72 feet from point of frog to point of clearance on passing track. It was 144 feet from the east end of switch point to the point of clearance on passing track. The side track would hold 23 cars and was about 920 feet long. The passing track at Weleetka was called "short pass" and was connected only at one end. It was used to set out cars on. It was 144 feet from the end of the switch to the place where the tracks were 14 feet from center to center. It was about 9 feet 3 inches from the outside rail of main track to inside rail of siding. Coal cars are 9 feet 3 inches in width at the floor. The sides extend over the rail about 12 inches. Frame of coal car standing on track would extend out some 22 inches further than rail. Witness did not know how far the locomotive would extend. A coal car is about 36 feet long. The track at Weleetka is standard gauge.

The fireman who was on the engine of the train, from which the appellee stepped on the night of his injury, stated that he saw the appellee when he stepped off the engine. He stepped to the ground and made two steps and ran into the car on the side track. He struck his head against the car and fell or ran back about 8 feet. The train struck him in the back. Witness saw appellee strike the box car. Witness did not know how far the car was from the switch point or frog. The cab was lighted with electricity and the engine was equipped with good electric head-light. Witness first noticed the box car when he got even with it. After appellee's injury the car that he was to put on the side track was placed there. It was in the clear about one car length and was the east car on the side track. The car appellee ran into was standing just where it was when he got hurt. At the place where appellee got off the engine, the head-light would not show the car that appellee struck. Witness did not see the car on the side track until he got opposite it, because he was watching Roberts to get a signal from him as to where he wanted the engine to stop so he could uncouple the car and place it on the spur track.

The testimony of the above witnesses was corroborated by others and there was testimony by expert railroad employees that the standard distance from center of main line and passing track is 14 feet, and for side tracks 13 feet; that 4 feet is sufficient space between box cars and engine for a man to get off and do his work when train is moving from 2 to 4 miles per hour. At least one of these witnesses testified that if a man had a lantern in his hands which would throw light 10 or 15 feet, he would be bound to see the car on side track. The issues of...