Missouri Pac. R. Co. v. Bushey
| Decision Date | 07 October 1929 |
| Docket Number | (No. 118.) |
| Citation | 20 S.W.2d 614 |
| Parties | MISSOURI PAC. R. CO. v. BUSHEY. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Poinsett County; G. E. Keck, Judge.
Action by Mrs. Effie R. Bushey, administratrix of the estate of George M. Bushey, deceased, against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
N. F. Lamb and Gordon Frierson, both of Jonesboro, and Thos. B. Pryor, of Ft. Smith, for appellant.
Pace & Davis, of Little Rock, for appellee.
Appellee, administratrix of the estate of George M. Bushey, deceased, brought this suit under the Federal Employers' Liability Act (45 USCA §§ 51-59) against appellant in the circuit court of Poinsett county, to recover damages in the sum of $75,000 for the benefit of herself and minor son, Marion F. Bushey, on account of the injury and death of her husband, a railroad engineer in the employment of appellant at the time, through its alleged negligence in allowing the railroad track about 3½ miles north of McGehee to become so unsafe that it failed to support the locomotive which her intestate was operating in pulling train No. 102, in use in transportation of express and passengers from Louisiana to Arkansas and other states.
Appellant filed an answer denying the alleged negligence, and attributing the injury and death to the act of a miscreant in disconnecting a rail and moving the south end thereof toward the center of the track, which caused the derailment of the locomotive and two of the cars and a coach, and pleading assumed risk on the part of her intestate as an affirmative defense.
The cause was submitted to the jury upon the issues of alleged negligence and assumed risk, with directions as to elements and measure of damages, contingent on liability, which resulted in a verdict and consequent judgment in favor of appellee for $48,500, from which is this appeal.
Appellant contends for a reversal of the judgment upon the alleged ground that the undisputed testimony reflects that the proximate cause of the injury to appellee's intestate, resulting in his death, was the disconnection of a certain rail and the removal of the south end thereof about 18 inches west toward the center of the track by an unknown miscreant, and that the derailment of the locomotive and said cars and coach did not result from the unsafe condition of the track.
The wreck occurred about midnight of September 13, 1926, some 3½ miles north of McGehee. Thirty-five minutes before the wreck occurred, another train had passed over the track at this point safely, running 35 or 40 miles an hour. At the time of the wreck the train was traveling north, and after bending a part of the rails and tearing most of the ties literally to pieces for a distance of 300 feet, the locomotive, detached from the mail and baggage cars and chair coach, and leaving them almost demolished in various positions on the track, was found on the east side of the track, partly east of the right of way fence, lying on its left side, emitting hot water and steam, beneath which appellee's intestate was caught and tightly held by his legs for about three hours before they could release him, during which time the hot water and steam blew into his face and put out his eyes. Immediately after being released, he died from the effects of the injuries received. During the entire time he was pinned under the locomotive his suffering was intense. He was conscious and continually called on those present for help and assistance to get out. The two sleepers or Pullmans at the rear of the train were uninjured, the front wheels of the first one being on the ground and the back wheels on the rails, and the second one standing on the track in a normal position.
The superintendent, roadmaster, and other officials and employees came out from McGehee to the scene of the wreck, and a short time thereafter set about to ascertain the cause of the wreck. They discovered a detached or disconnected rail under the front Pullman, with the south end thereof moved 18 inches or more toward the center of the track, and they, as well as other parties present, testified that the rail was straight, sitting upright, pulled several feet forward, and attached or connected to the bent rail in front of it; that the angle bars, bolts, washers, and taps were lying near and around the place where they had been detached from the rail, south or back of it; that the threads on the taps and bolts were bright, and all of them uninjured, indicating to their minds that the taps had been unscrewed, and that the bolts, angle bars, and washers had been removed by some person. The spikes had all been removed on the inside of said rail, but not on the outside, with a clawbar which had left its print on the ties. Tools which would have been used to disconnect the rail and pull the spikes were found hidden between some logs a short distance from the right of way. The plates on the seven ties upon which the rail had rested disclosed evidences of wheels having passed over them, but the seven ties themselves were left uninjured. The rails in front or north of these seven ties were bent, and the ties for a distance of 300 feet were demolished. The east rail immediately in front of the disconnected rail was turned on its side, and had marks upon it indicating to the minds of appellee's witnesses that the locomotive and other cars were derailed at that point. Sand had been sprinkled on three or four rails on the south of the displaced rail, all of which were still in alignment and in place.
Appellant concedes that the testimony introduced by appellee showed that the track where the rails were bent and ties demolished by the locomotive, two cars, and chair coach was in bad condition. This concession was based upon the testimony of witnesses introduced by appellee, who testified that this portion of the track, as well as the portions thereof for a long distance to the north and south, were out of repair and unsafe, on account of rotten ties and loose spikes holding down the rails; that a large number of new ties had been scattered by the side of the track at the point of the wreck and a considerable distance each way, for the purpose of repairing the track. Appellant argues that, notwithstanding the concession it makes, the testimony does not contradict its testimony to the effect that, before reaching the bent rails and demolished ties, the locomotive, cars, and coach between it ran off the rails onto the ties at the place where the rail was disconnected and moved toward the center of the track, and that this was the cause of the commencement of the wreck, and necessarily the cause of the death of appellee's intestate.
This would be a conclusive argument against liability of appellant, if the physical facts testified to by its witnesses were entirely undisputed. The condition found and testified to by them is disputed by physical facts testified to by appellee's witnesses. According to the testimony of the witnesses introduced by appellee, the rail which was turned and bent was immediately in front of the first Pullman. The testimony disputes that of appellant to the effect that it began with the displaced rail. The physical fact that the seven ties under the displaced rail were not demolished by the locomotive, cars, and coach, just as the ties were north of the seven ties, also disputes the physical fact that the bolts had been unscrewed and rail moved before the train arrived at that point. It is almost inconceivable that a locomotive of perhaps 100 tons weight and two cars and a coach could have dropped, while rapidly moving, off of a rail onto the ties, and not have displaced them, when the same locomotive, cars, and coach, necessarily with a little less speed, had demolished and displaced the ties and bent the rails...
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