Missouri Pacific Railroad Co. v. Skipper

• Decision Date: 10 October 1927
• Docket Number: 223
• Citation: 298 S.W. 849,174 Ark. 1083
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. SKIPPER
• Court: Arkansas Supreme Court

298 S.W. 849

174 Ark. 1083

MISSOURI PACIFIC RAILROAD COMPANY v. SKIPPER

No. 223

Supreme Court of Arkansas

October 10, 1927

Appeal from Lonoke Circuit Court; George W. Clark, Judge; affirmed.

Judgment affirmed.

Harvey G. Combs and Thomas B. Pryor, for appellant.

Pace & Davis, for appellee.

OPINION

MEHAFFY, J.

Mrs Fannie Skipper, administratrix of the estate of W. A. Skipper, deceased, began this action against the Missouri Pacific Railroad Company, a corporation, to recover damages for the injury and death of W. A. Skipper, and the suit is for the benefit of the widow and children of deceased.

The plaintiff alleged, in substance, that she is a resident and citizen of North Little Rock, Arkansas, and that she is the duly qualified and acting administratrix of the estate of W. A. Skipper, deceased, having been appointed such administratix by the probate court of Pulaski County, Arkansas. That the defendant, Missouri Pacific Railroad Company, is a corporation organized under and by virtue of the laws of the State of Missouri, and is engaged in operating a line of railroad, transporting passengers and freight for hire, in the states of Missouri, Arkansas, Louisiana, and other states in the United States.

She alleges that the suit is for damages for personal injuries sustained by W. A. Skipper on the 14th day of January, 1926, that resulted in his death, the said W. A. Skipper being in the employ of the defendant, Missouri Pacific Railroad Company, at the time in the capacity of a conductor operating a freight train, and that this suit is brought under the Federal Employers' Liability Act. That, at the time said injury occurred, W. A. Skipper was engaged in interstate commerce, and that the cars that were being handled and other cars in the train were carrying interstate commerce, carrying freight to the State of Louisiana from points without the State of Louisiana, and also carrying freight passing through the State of Louisiana that originated in a State outside of Louisiana. Plaintiff alleges that deceased was in the employ of the company in the capacity of a conductor, and at work in the assisting of running a freight train from Collinston, Louisiana, to Ferriday, Louisiana, and that, while on the house-track at Rayville, Louisiana, engaged at work upon a coupling on a car standing on said track, in front of the freight depot, a car was kicked in upon him without warning, and caught him between the platform and the car, and crushed him in such a manner that, after living about thirty-six hours, he died. That the injuries were caused by the negligence and carelessness of the defendant. That, while deceased was trying to adjust a coupler on the end of a car standing on the house-track in front of the freight depot, with his back toward the switch, W. J. Rogers, one of the brakemen upon the train, carelessly, negligently and recklessly, and after discovering the peril of the deceased, and without warning to the deceased, threw the switch and ran a freight car in and onto said house-track and upon and against the deceased, thereby injuring him, resulting in his death. That deceased was a strong, robust and healthy man, 45 years of age, and was earning $ 3,600 a year, all of which, except his personal expenses, he contributed to the support of his family; that there are now surviving him his widow and three children, his sole heirs at law and next of kin, and that the widow and children were dependent upon him for support, and constituted his family, to whom he contributed the amount aforesaid for support and maintenance; and that, from the time the said W. A. Skipper received the injuries aforesaid until the time of his death, a period of about thirty-six hours, he was conscious, and suffered great and excruciating pain of body and anguish of mind, which said injuries were caused through the negligence and carelessness of the defendant aforesaid.

The answer of the defendant was a specific denial of each allegation of the complaint, with a plea of assumed risk and contributory negligence.

The trial resulted in a verdict and judgment for $ 20,000, from which is this appeal.

The appellant's first contention is that the court erred in not directing a verdict for the defendant, and, in this connection, argues that instruction No. 1, requested by the plaintiff, should not have been given, because it contends that the evidence was not sufficient to warrant the court in submitting such an issue to the jury.

Instruction No. 1, complained about, reads as follows:

"The court instructs the jury that plaintiff relies for a recovery in this case alone upon the doctrine of discovered peril, and, if you find from a preponderance of the evidence that the deceased, W. A. Skipper, was in the employ of the defendant, Missouri Pacific Railroad Company, as a conductor on a freight train, and, before the injury, in a place of peril on or near the house-track of the defendant, at the freight depot in the town of Rayville, Louisiana, and that W. J. Rogers was a brakeman on said train and in the employ of the defendant, and that the said W. J. Rogers, after discovering the peril of the deceased, W. A. Skipper, failed to exercise ordinary care and diligence in the use of the means at his command to avoid injuring the deceased, but carelessly and negligently threw the switch and turned a freight-car onto the house-track, after he knew of the peril of the deceased, without any warning to the deceased, and that deceased was struck and injured by said car, and, as a result of said injuries, the deceased thereafter died, and that the act of the brakeman in turning the car onto the house-track, after discovering the peril of the deceased (if you find these facts to be true from a preponderance of the evidence), was the proximate cause of the injury, and that the deceased was not guilty of contributory negligence and had not assumed the risk, then you will find for the plaintiff, and assess such damages as you may find should be awarded under the evidence and other instructions given in the case."

The facts are substantially as follows: A plat or blue-print was introduced, showing the location of the freight depot, the public road, the road that runs back of the depot, the house-track, the main line, and where the caboose was left. Also the switch which was thrown and the place where the truck was standing.

The deceased, W. A. Skipper, was 45 years old at the time of his death, and he and the plaintiff had been married 21 years. She lived in North Little Rock, and was appointed by the probate court of Pulaski County as administratrix of the estate of W. A. Skipper, the deceased. There were three children born of their marriage, Lucile, Walter Jr., and Charles, the last two being 12 and 8 years, respectively. That, when the plaintiff, after receiving a telephone message, reached Monroe, Louisiana, at 10:15 at night, she found her husband in a sanitarium, very sick. He told her that he had suffered bodily and mentally since morning. He was hurt in the chest. She stayed in the hospital all the time. During the next day he was partly conscious, and unconscious during the afternoon and night. After one o'clock he asked what time it was, and he said that he thought it was seven o'clock. He would seem to be conscious for a few minutes, and then he would go right off. During the last few minutes of his life he was very restless. He was a very large man, and the girl said he was suffering so that nothing she would give him would ease him. He was practically delirious all that night. He died at 9:20 Friday night. When witness got to Monroe, deceased asked her about the children. His salary varied, but he worked steadily. His salary was usually around $ 350 a month, but during busy seasons it was a good deal more than that. He was not an extravagant man. All the money he used was what it took to live on, and the rest of it was used at home. He would come home every Sunday, but he could not stay long on account of the way the trains ran. He did not drink or gamble, and had no wasteful habits, and lived an economical, frugal life. His personal expenses were between fifty and sixty dollars per month, and the rest of it was used on the family.

Gus Roberts testified that he was 20 years old; lived in Rayville, Louisiana, and was at work on the 14th day of January, the morning that Mr. Skipper was injured; was delivering a truck for Mr. Fortenberry, for whom he worked. Was with Edwin Pea on the truck, and was at the depot at the time Mr. Skipper got hurt. Was at the railroad crossing at the time of the accident, at the place where the public road crosses the railroad track. Was waiting for the train to get from over the crossing. Was five or six feet from the switch at the road crossing where the brakeman was doing the switching. Saw Mr. Skipper before the accident. There was a car on the switch, and he passed this car, and happened to notice that there was something wrong with the knuckle, and he straightened it, and when this car came in there they coupled together, and they pulled the train on up above the crossing to the switch, and he was in there, and had his back to the switch. They kicked the car in on him. Witness said he was 40 or 50 yards from there, in plain view of him, right near Rogers, who threw the switch and turned the car in on the house-track. "There was nothing between Skipper and me to keep me from seeing him plainly. There was not anything between Rogers and Skipper. It was plain and open." Witness ran down to where Skipper was injured, and Skipper told him to get him where he could lie down. He seemed to be suffering. Rogers could see Skipper, and did see him before he turned the car in on him. They pulled the car up above and gave it a...