Missouri & North Arkansas Railroad Co. v. Collins

• Decision Date: 03 February 1913
• Citation: 153 S.W. 607,106 Ark. 353
• Parties: MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. COLLINS
• Court: Arkansas Supreme Court

153 S.W. 607

106 Ark. 353

MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. COLLINS

Supreme Court of Arkansas

February 3, 1913

Appeal from Carroll Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

W. B Smith, J. Merrick Moore, Troy Pace and H. M. Trieber, for appellant.

1. There was no duty upon appellant to make an inspection for the purpose of seeing whether the nut attached to the top of the rod cup was perfectly square on all its corners, nor any negligence in sending out an engine having thereon a nut one corner of which might have been worn away. 1 Bailey on Master & Servant (2 ed.), § 251; 76 N.W. (Mich.), 497; 112 N.W. (Neb.), 318; 38 S.E. 876; 82 S.W. 319; 98 F. 192; 104 N.W. (Ia.), 577; 106 N.W. (Wis.), 106; 98 Tex. 225.

2. If such a rod cup or nut as is complained of was left upon appellant's engine, appellant could not reasonably have anticipated, as a result, appellee's injury, and there is no such relation of proximate cause and result as to render appellant liable. 86 Ark. 289-291; 91 Ark. 260.

3. Appellee assumed the risk. Supra; 57 Ark. 503.

4. It was error to permit the witness Dr. Tatman, in the light of his statement that plaintiff's kidneys were practically all right at the time he testified, and that there was no present indication of Bright's disease or calculous, to speculate upon the possibility of his having one or the other of these diseases as a consequence in the future. Watson on Damages for Personal Injuries, § 607; 75 N.W. 88, 89; 70 A. 189; 12 Am. & Eng. Enc. of L. 449, 450.

This error, when considered in connection with the evidence that no unusual pain or suffering is shown, nor permanent injury nor probability of incapacity for any great length of time from work, unquestionably led to the excessive verdict returned by the jury. 74 Ark. 326; 100 Ark. 526.

Wade H James and Claude A. Fuller, for appellee.

1. That there was negligence on the part of appellant is established by the testimony of its own witness, Davis. Whether it was a duty appellant owed to make an inspection or not can not now be raised by appellant for the testimony shows that it elected to make inspection of rod cups and engineers contracted with that in view. It was its duty to furnish an engine properly equipped. Employers' Liability Act § 1. The jury's verdict settles the fact that appellant did not use ordinary care to furnish an engine properly equipped, and it is liable under the law. 78 S.W. 220; 97 Ark. 556; 57 Ark. 505; 67 Ark. 295-306; 1 White on Personal Injuries on Railroads, 207; 35 Ark. 616; 82 Ark. 82.

There was no inspection of the engine. An ineffectual inspection, where a careful inspection would have revealed the defect, will not relieve from liability. 65 S.W. 668; 66 S.W. 477; 97 N.Y.S. 801; 96 S.W. 183; 1 White, Pers. Inj. on Railroads, 270.

2. Appellant's negligence was the proximate cause of the injury. The proof shows that the cause of the injury, independent of intermediate causes, was the defective rod cup left upon the engine. 86 Ark. 289-291; 27 L. R. A. 538; 126 Ind. 391, 26 N.E. 64; 20 Mo.App. 222; 86 Tex. 708; 65 Tex. 274.

3. There was no assumption of risk. Appellee will not be presumed to have known that a defective rod cup was attached to his engine, neither was that fact obvious to him or to a reasonably prudent person. 97 Ark. 556, 558; Id. 347.

4. The testimony of Dr. Tatman was not prejudicial. Appellant is benefited rather than injured by his answers. 55 Ark. 163; Id. 12; 31 Ark. 365; 28 Ark. 531; 66 Ark. 16-21.

The verdict is not excessive.

OPINION

SMITH, J.

Williams Collins, a locomotive engineer in the employ of appellant, brought suit for personal injuries. He alleged that his injury occurred as follows: That he was given charge of an engine and caboose at Eureka Springs, Arkansas, with instructions to proceed to Berryville, Arkansas, and make up a train to Seligman, Mo. That said engine was an overhauled engine, which had never been "broken in," as was customary after overhauling an engine before using it, as directed. That he started with his engine, but at King's River bridge, he discovered that the mainpin on the right side of the engine was running hot, which was caused by a rod being keyed up too tight; that the plaintiff on the return trip from Berryville discovered at Gaskin that it was necessary to loosen a rod cup with a wrench, on account of the mainpin running hot. That in attempting to loosen said rod cup, he attached the wrench to it as is customarily done, and while attempting to loosen said rod cup, the wrench slipped and he was thrown upon his back across a large stone. That the slipping of the wrench was caused by one of the corners of said cup being round and mashed so that the wrench did not hold and that his fall was caused by reason of it slipping and that as a result thereof, he was confined to his bed for two weeks; that his left kidney was torn loose from its natural position and badly lacerated; that he suffered much pain; and that he has since been unable to do any kind of work, or to be at ease physically; that he was permanently injured, and had suffered a decrease in his earning capacity; had lost, and would lose much time from his work; and had incurred large expense for medical treatment.

The answer admitted defendant's employment, but denied all the allegations of the complaint and alleged that if plaintiff was injured, the injury resulted from his own carelessness in the performance of his work, and pleads assumption of risk.

Plaintiff testified that he had been a locomotive engineer for six years and was operating a train, carrying goods in an interstate shipment. That when he got to King's River bridge, it became necessary to stop his engine as the mainpin was running hot and to fill the cup with grease; that standing on the side of the engine on the cinder platform, he tried to unscrew the cup with a monkey wrench, but it was on too tight and he had to get the fireman to help him get the cup off with the coal pick; the fireman filled the cup with grease and they proceeded with the engine to Gaskins, where another stop had to be made to fix the hot pin. That standing again at the side of the engine, on the cinder platform, plaintiff tried at this point to unscrew the cup by pushing against the handle of the monkey wrench, but it was on too tight. Witness then changed the wrench over to the other hand so that he could put his foot against the driving wheel and pull on the wrench handle. As he pulled, the wrench slipped off the cup, and he sustained the injuries for which he sues.

One witness testified on behalf of plaintiff that plaintiff did not appear to walk as erect as he did before his injury and the nurse, who ministered to him during his confinement in bed, stated that he suffered pain and passed blood several times, and another witness testified that he had massaged appellee's back during a period of two months; that at first it was discolored, but that there was now no discoloration or other evidence of his injury, although he still complained of a dull pain in the back.

Appellee testified that the wrench was safe, if the cup had not been round on one side, and that he did not know of this defect until after his injury, which occurred in the night time. There were witnesses, who testified as experts, that it was not safe to pull on a cup with a round side with a wrench, especially when the cup was greasy, as they usually were.

It appeared to be conceded that the object of "breaking in" an engine was to see that the bearings would not run hot and time be lost in consequence; and that the failure to "break in" an engine would not endanger the safety of anyone, and the proof on the part of the defendant was that the engine had been broken in before being put back into service.

The evidence on the part of the defendant was also to the effect that the cup could be removed with safety in the exercise of ordinary care. Appellant also alleges that the verdict was excessive; and that the court erred in permitting one Dr. Tatman, a witness for appellee, to testify as to certain possible results that might arise from such an injury as plaintiff claimed to have received. In the course of the examination of this witness, the following questions and answers appear:

Q. Go ahead and state then what the natural and probable consequences of injury to the kidneys would be.

A. One of the probable results of injury to the kidneys is calculous.

Q. What other, doctor?

A. I will state the possibility of Bright's disease.

Q. What is Bright's disease?

A. Chronic inflammation of kidneys, or it may be acute. In cases of this character, it may be more of a chronic type. There is practically two forms of Bright's disease.

Q. What in reference to cure of it, chronic Bright's disease?

A. I forget what the per cent is, but it will go up from 75 to 90 per cent.

Q. What do the medical authorities count it as?

A. Practically incurable disease.

Q. What is calculous?

A. Stone in kidney.

Q. Is that a serious disease?

A. Yes.

And upon the cross examination of this witness, the following questions were asked and answers given:

Q. You say his spine is going to be all right?

A. Yes.

Q. And that his kidneys are practically...