Missouri Pac. R. Co. v. Foreman

• Decision Date: 27 June 1938
• Docket Number: No. 4-5135.,4-5135.
• Citation: 119 S.W.2d 747
• Parties: MISSOURI PAC. R. CO. et al. v. FOREMAN.
• Court: Arkansas Supreme Court

119 S.W.2d 747

MISSOURI PAC. R. CO. et al. v. FOREMAN.

No. 4-5135.

Supreme Court of Arkansas.

June 27, 1938.

Rehearing Denied October 3, 1938.

Appeal from Circuit Court, Hot Spring County; H. B. Means, Judge.

Action by Bruce Foreman, as administrator of the estate of Robert T. Foreman, deceased, against the Missouri Pacific Railroad Company, Guy A. Thompson, as trustee of and for the Missouri Pacific Railroad Company, and others to recover for the death of Robert T. Foreman when he was struck by a train at crossing. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed on condition of remittitur.

R. E. Wiley, of Little Rock, and Richard M. Ryan, of Hot Springs, for appellants.

Farmer Tackett, of Malvern, and Tom W. Campbell, of Little Rock, for appellee.

DONHAM, Justice.

Bruce Foreman, as Administrator of the estate of Robert T. Foreman, deceased, sued the Missouri Pacific Railroad Company and Guy A. Thompson, as Trustee of said Company, and J. L. Fisk and C. H. Hensley, engineer and fireman, respectively, in the Circuit Court of Hot Spring County, alleging that Robert T. Foreman was struck by a train while attempting to cross the tracks of the appellants at a public crossing in the city of Malvern on the night of November 1, 1935; that the said Robert T. Foreman was driving a truck and, as he attempted to drive same over the tracks at said crossing, the employees of appellants in charge of the running of appellants' train No. 3, being the said J. L. Fisk, engineer, and the said C. H. Hensley, fireman, negligently ran said train over said crossing without giving reasonable or adequate signals, in fact, without giving any signal by bell or whistle and without keeping a lookout for persons or property upon the tracks of appellants at said crossing. It was further alleged that just north of said crossing there was a large warehouse, two gas storage tanks and an oil tank car, which caused an obstruction and cut off the view of the deceased to the extent that he could not see the train as he approached the tracks from the east and that both the engineer and fireman were guilty of recklessly running the train over and upon said crossing without keeping a lookout and without warning by bell or whistle, with knowledge that the view at the crossing was obstructed. The said Robert T. Foreman was killed instantly. There is, therefore, no element of pain and suffering involved in the case. Suit was brought for the benefit of the widow and next of kin of the deceased for the sum of $30,000. There was a jury trial of the issues involved, resulting in a verdict for appellee for the benefit of the widow and next of kin of the deceased in the sum of $20,000.

This is the second appeal of this case. The opinion on the first appeal will be found in 194 Ark. 490, 107 S.W.2d 546. Before the case was tried the first time, a petition and bond for removal were filed and the case removed to the Federal Court for the Western Division of the Eastern District of Arkansas. Appellee contested the removal; and, upon a hearing on a motion to remand the case, the Federal District Court remanded same. The first trial resulted in a verdict for appellee in the sum of $7,500. Upon an appeal from the judgment based upon said verdict, this court reversed and remanded the cause, because of erroneous argument of counsel for appellee, at the same time holding that there was no other error in the record. The court in its opinion on the first appeal held that the questions of liability of appellants for the death of the deceased and the proper compensation to be awarded for the death were questions which were proper to submit to the jury. This holding of the court on the first appeal becomes the law of the case on this appeal, if the evidence shown by the record on this appeal is the same, or substantially the same, as that shown by the record on the first appeal. The evidence on the question of liability on the second trial, we hold, was substantially the same as that on the first trial. Hence, the former opinion to the effect that appellee had made out a case sufficient to go to the jury is the law of the case on this appeal and it is binding on the court upon a consideration of the same question. McDonough v. Williams, 86 Ark. 600, 112 S.W. 164. In said case, Mr. Justice McCulloch, speaking for the court, said (page 167):

"Learned counsel for appellant argue, with much zeal and plausibility, that the plaintiff did not make out a case to go to the jury, and that the findings of the jury as to the various essential elements of the alleged cause of action are not supported by evidence. The same question was argued with equal force and confidence when the case was before us on former appeal, but we decided that there was enough evidence to go to the jury. There is little difference in the evidence in the present record and in that presented on the former appeal, and we must treat the former decision as conclusive of the question."

Again in the case of McCombs v. Moss, 131 Ark. 509, 199 S.W. 545, opinion by Mr. Justice Hart, this court said (page 546):

"In McDonough v. Williams, 86 Ark. 600, 112 S.W. 164, the court held that where, on a former appeal, this court adjudged that a plaintiff made out a case to go to the jury, and the case comes up on a second appeal with the same evidence, the former opinion will be conclusive. Hence the court did not err in submitting the case to the jury."

Where the record on a second appeal is substantially the same as on the former appeal, the holdings of this court on the former appeal become the law of the case. This rule has been followed by this court throughout its history. The following are cases sustaining the rule: Porter v. Doe, 10 Ark. 186, 187; Rector v. Danley, 14 Ark. 304; Vogel v. Little Rock, 55 Ark. 609, 19 S.W. 12; Rankin v. Schofield, 81 Ark. 440, 98 S.W. 674; National Surety Co. v. Long, 85 Ark. 158, 107 S.W. 384; St. Louis, Iron Mountain & Southern Ry. Co. v. Hill, 92 Ark. 484, 123 S.W. 760; Bowman v. State, 93 Ark. 168, 129 S.W. 80; Knauff v. National Cooperage & Woodenware Co., 99 Ark. 137, 137 S.W. 823; Southwestern Telegraph & Telephone Co. v. Danaher, 102 Ark. 547, 144 S.W. 925; Williams v. Fulkes, 103 Ark. 196, 146 S.W. 480; Storthz v. Watts, 125 Ark. 393, 188 S.W. 1166; Western Union Telegraph Co. v. Furlow, 129 Ark. 116, 195 S.W. 368; Durfee v. Dorr, 131 Ark. 369, 199 S.W. 376; Mayo v. Arkansas Valley Trust Co., 137 Ark. 331, 209 S.W. 276; Henry Wrape Co. v. Barrentine, 138 Ark. 267, 211 S.W. 366; Hurst v. Cosby, 154 Ark. 300, 242 S.W. 570; Missouri Pacific Railroad Co. v. Walnut Ridge-Alicia Road Improvement District, 160 Ark. 297, 254 S. W. 1065; Indiana Lumbermen's Mut. Ins Co. v. Meyers Stave & Mfg. Co., 164 Ark. 359, 261 S.W. 917; Howard-Sevier Road Improvement District v. Hunt, 166 Ark. 62, 265 S.W. 517; Gregg v. Road Improvement District, 169 Ark. 671, 277 S.W. 515; Jeffett v. Cook, 175 Ark. 369, 299 S.W. 389; Alford v. Prince, 178 Ark. 159, 10 S.W.2d 10; Blume v. Lightle, 180 Ark. 136, 20 S. W.2d 630; Morris & Co. v. Alexander & Co., 180 Ark. 735, 22 S.W.2d 558; American Railway Exp. Co. v. Cole, 185 Ark. 532, 48 S.W.2d 223; Milsap v. Holland, 186 Ark. 895, 56 S.W.2d 578; Postal Telegraph-Cable Co. v. White, 190 Ark. 365, 80 S.W.2d 633; Russwurm v. Helena, 191 Ark. 338, 86 S.W.2d 175; Missouri Pacific Railroad Co. v. Hunnicutt, 193 Ark. 1128, 104 S.W.2d 1070; Missouri Pacific Railroad Co. v. Sanders, Ark., 117 S.W.2d 720.

Not only does this court hold that the law of the case as announced on the first appeal becomes the law of the case on the second appeal, but practically all the other courts in this country so hold.

We hold that, since the question as to whether or not the evidence was sufficient to go to the jury in the instant case was settled by this court on the former appeal, there was no error committed by the lower court in submitting the case to the jury on the second trial.

After the case was remanded by this court for a new trial, the engineer, J. L. Fisk, who was a party-defendant at the first trial, died; and the appellant, Guy A. Thompson, as Trustee for the Missouri Pacific Railroad Company, then filed a second petition for the removal of the cause to the Federal District Court for the Western Division of the Eastern District of Arkansas, alleging that J. L. Fisk and C. H. Hensley, engineer and fireman, respectively, on the train that struck and killed the deceased, were fraudulently joined as parties-defendant without any purpose to prosecute the action in good faith against them; and that the said J. L. Fisk was dead, having departed this life since the first trial of the case.

It was further alleged that said C. H. Hensley was a laboring man and was insolvent and without means or property with which to answer in damages to appellee, and that appellee knew of the insolvent condition of the said Hensley and knew that he could not respond in damages.

The alleged acts of negligence of said Fisk and Hensley were denied in the petition for removal; and it was alleged in the petition that any cause of action which existed against the said J. L. Fisk in his lifetime was barred as to his estate or personal representative.

It was further alleged in said petition for removal that the said C. H. Hensley, as fireman on the train which struck and killed the deceased, was keeping a sharp lookout along the tracks at the time of the accident and that he did not have control of the bell or whistle of the engine of said train, but that same were under the control of the engineer, J. L. Fisk, and that, therefore, the alleged acts of negligence with reference to a failure to ring the bell or blow the whistle were not properly chargeable to the said C. H. Hensley.

It was further alleged in the petition that when the said C. H. Hensley saw the deceased as he drove upon the tracks, he gave a signal to the engineer, Fisk, to stop the...