Missouri Pac. R. Co. v. Warrick
| Decision Date | 23 June 1924 |
| Docket Number | (No. 23.) |
| Citation | 262 S.W. 644 |
| Parties | MISSOURI PAC. R. CO. v. WARRICK. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Franklin County; James Cochran, Judge.
Action by P. O. Warrick against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Pryor & Miles, of Ft. Smith, for appellant.
Chew & Ford, of Ft. Smith, for appellee.
This suit was brought in the circuit court of Franklin county, Charleston district, by appellee against appellant to recover damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), on account of personal injuries received through the alleged negligence of fellow servants. The alleged acts of negligence contained in the complaint are as follows: That in operating its trains under the block system between Coffeyville, Kan., and Van Buren, Ark., for the protection of its employees, it violated the rule of the system by permitting extra 6 south, a freight train, to enter the block and occupy the main track between Vian and Sallisaw, in Oklahoma, without furnishing an order or caution card to appellee or his conductor, Charles Keith, advising them to proceed with their train, extra 1806 south, under control against said extra 6 south to Sallisaw, but in lieu thereof delivering them an order or caution card advising them to proceed with their train from Gore to Vian under control of said extra 6 south; that appellant, through its agents at Vian, lowered the arm of the semaphore post and displayed the green light from the board thereof, which indicated that the main track between Vian and Sallisaw was clear and that they could proceed with safety; that about two miles south of Vian said extra 6 south was stopped and backed toward the train being operated by appellee in violation of rule No. 99, requiring that when trains are stopped on the main track for any cause a flagman be sent back from the rear end of said train with flags and signals a sufficient distance to insure full protection to approaching trains; that a box car was attached to the caboose of said extra 6 south which obstructed the lights on the rear end thereof from view.
Appellant filed an answer denying seriatim the alleged acts of negligence and pleading the assumption of risk by appellee in bar of a recovery and contributory negligence to diminish the amount of any recovery. Appellant also filed a cross-complaint claiming damages in the sum of $1,800 against appellee for driving the locomotive operated by him into the caboose and several box cars attached to the rear end of said No. 6 south, through his alleged carelessness and negligence in failing to maintain a lookout, in failing to heed signals to stop his train, and in exceeding the maximum speed limit of 30 miles an hour, fixed by order of appellant. Appellee filed an answer to the cross-complaint denying each allegation of negligence contained therein and pleading specifically that whatever damage resulted from the collision was caused by the carelessness and negligence of appellant as set out in appellee's complaint. The cause was submitted to a jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and consequent judgment for $10,000 against appellant, from which is this appeal.
According to the undisputed testimony in the record, appellant operated a railroad under the block system between Van Buren, Ark., and Coffeyville, Kan., passing through the state of Oklahoma. Appellant and his employees were engaged in interstate commerce at the time of the collision of the trains Nos. 6 and 1806 extras south, which resulted in the injury of appellee. The block system was one by which the conductors and engineers operating trains between certain stations were apprised of trains in front of or following them and directing them by caution cards to operate their trains under control with reference to particular trains in front of them. The movement and control of all trains between Van Buren and Coffeyville were under the control of appellant's train dispatcher at Van Buren, who directed the movement of all trains between said points by telegraph and telephone orders. The main line track was cut up into blocks. There was a block between Gore and Vian and between Vian and Sallisaw. Appellant maintained a semaphore board at Vian. It consisted of a board and arms attached to a post. When the arms were pointing downward and a green light was exhibited on the board it was a signal to approaching trains that the track was clear and to proceed, but if a red light was displayed it was a signal to stop for telegraph or telephone orders.
When train No. 1806 extra south, operated by appellee and his conductor, C. R. Keith, pulled into Gore the night of January 31, 1921, the agent at that station handed them a caution card directing them to operate their train between block stations Gore and Vian under control against train No. 6 extra south, which was in front of them in said block. This caution card became ineffective, or, in railroad parlance, died, at Vian. The caution card given appellee and his conductor contained an incorrect order. The order sent by the dispatcher to the agent at Gore to deliver to appellee and his conductor was to proceed with their train under control against extra 6 south from Upson, a station between Gore and Vian, to Sallisaw. The caution card containing the correct order was never given to them. In obedience to the order contained in the caution card given them by the agent at Gore, appellee and his conductor proceeded with their train under control against extra 6 south to Vian. As they approached Vian they observed the arms of the semaphore post pointed downward and the green light exhibited on the semaphore board, so, under the belief that extra 6 south had passed Sallisaw, entered the block between Vian and Sallisaw and proceeded southward without stopping at Vian. There was a railroad bridge 603 feet long, including the trestle work, about a mile south of Vian. The south 459 feet of the bridge was on a slight curve. The curve continued for about 450 feet after leaving the south end of the bridge before the track straightened out. From the center of the curve south of the bridge the track was straight and slightly upgrade for 1,782 feet, or to the point where the engine operated by appellee collided with the rear end of extra 6 south. Appellee was in possession of a bulletin issued by the superintendent that the office at Vian would be closed from 11 o'clock p. m. to 3 o'clock a. m. It was a rule in the block system that block stations should remain open until the main track in the block was clear of trains. There is a conflict in the testimony as to whether a superintendent's bulletin would supersede the block rules and close a block station without authority of the dispatcher. There is also a conflict in the testimony as to whether appellee was guilty of negligence in passing Vian without stopping in the event the office was open. While all the witnesses interpreted the green light on the semaphore board as a signal to approaching trains that the track was clear and to proceed, they differed as to whether the engineer should stop for orders if lights were on in the office. The testimony responsive to all other allegations of negligence pro and con was conflicting. A number of witnesses testified on each side, and to attempt a summary of the testimony of each would extend this opinion to a great length, so only a general summary of the evidence will be attempted.
The testimony adduced by appellee tended to show that he kept a constant lookout as he proceeded south from Vian, and that he could have seen a flagman signaling to him if he had been at milepost 536, or anywhere near the south end of the bridge or the south end of the curve, in...
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