Missouri Pacific Railroad Co. v. Hathcock

• Decision Date: 08 April 1940
• Docket Number: 4-5869
• Citation: 139 S.W.2d 35,200 Ark. 294
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE, v. HATHCOCK
• Court: Arkansas Supreme Court

139 S.W.2d 35

200 Ark. 294

MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE, v. HATHCOCK

4-5869

Supreme Court of Arkansas

April 8, 1940

Appeal from Clark Circuit Court; Dexter Bush, Judge; reversed.

Judgment reversed and cause dismissed.

Henry Donham, for appellant.

Tom W. Campbell, J. H. Lookadoo and Pace & Davis, for appellee.

GRIFFIN SMITH, C. J. Mr. Justice HUMPHREYS and Mr. Justice MEHAFFY dissent.

OPINION

GRIFFIN SMITH, C. J.

Appellee, who was injured November 4, 1937, brought suit under the Federal Employers' Liability Act,^[1] asking $ 60,000. The case was tried August 4, 1939, resulting in verdict and judgment for $ 30,000.

The following statement is from appellee's brief:

"Henry G. Hathcock was in the employ of Missouri Pacific Railroad Company in the capacity of a brakeman. For ten years he had worked for the railroad company, part of the time as brakeman and the remainder of the time in the yards at North Little Rock as special agent, in the machine shops, and at the elevator, and during all of this time he maintained a perfect record with the Company.

"On the night of November 4, 1937, about ten o'clock, after the freight train upon which he was working as a rear brakeman had stopped in the yards at Newport, Arkansas, he fell from a trestle and was injured so seriously that there was no controversy at the trial about his total incapacity to ever perform labor again.

"This trestle was constructed in the year 1930. Originally it was a solid railroad embankment and at that time about 700 feet of the embankment was removed and the trestle put in to permit the passage of water when White river overflowed. It was a low trestle, being from twelve to fourteen feet high, and when it was floored and covered entirely over with chat like the roadbed, it would be difficult for one walking along the track at night to discover, without making a close inspection for that purpose, that one had left the roadbed and gone upon a trestle.

"The one allegation of negligence relied upon is that the conductor, Guy Maris, when the train stopped at Newport, sent appellee back down the track to flag any train that might approach, and carelessly and negligently failed to warn him of the presence and the condition of a trestle over which he would be compelled to pass in performing his duty and the danger incident to such passage. . . .

"The circumstances under which appellee was injured were as follows:

"During all the time he worked for appellant he lived in North Little Rock. Two years of that time he worked as a brakeman on freight trains. His run as brakeman was south of Little Rock practically all the time between Little Rock and Texarkana with an occasional trip to Hot Springs, El Dorado and other places south. Eight years before his injury appellee went north three times on appellant's trains as a special officer and was at Newport, but this was in the year 1929, with one trip early in 1930; but this was before the trestle was put in and the roadbed was a solid embankment at that place at that time.

"On the night of November 4, 1937, appellee was called to go north on a run from North Little Rock to Poplar Bluff, Missouri, as a rear brakeman on a freight train, with Guy Maris as conductor. He was a stranger to the entire crew. He had made only two trips on this run before, each time as head brakeman. He told the conductor that this run was new to him and that he was unacquainted with it and told him he had made only two trips over it in the past seven or eight years.

"When the train arrived at Bald Knob it went in on a sidetrack and appellee and the conductor were on the rear of the caboose, and it being appellee's duty to close the switch, he left the caboose for that purpose at the wrong switch and the conductor called him and showed him the right switch and remarked to him, 'I should have told you before you got off where the switch was because I knew you were not acquainted on this end of the road.' This conversation was not denied by the conductor and occurred at the last station before they reached Newport. The train arrived at Newport at ten o'clock at night and stopped in the yards for the engine to cut off and get coal and water. The train, as was customary with freight trains, stopped at the Ferry street road crossing. This avoided cutting the train for this crossing and it was the universal custom for trains going north to stop at this crossing and had been for five or six years.

"The train extended back for about a half mile and the caboose stopped from 80 to 100 feet north of the trestle from which appellee fell. Although the conductor knew that the trestle was there and knew that it was a short distance from the caboose and that appellee would be compelled to cross it in obeying his order, and knew that the trestle was unprotected by banisters to safeguard passage over it, and knew that there was no light upon it or about the trestle to reveal its presence, . . . and although he knew it was a dark night, and was raining, and that the only light appellee had to guide him was a brakeman's lantern, and although he knew that the trestle was a ballast deck trestle, being floored, and the floor covered with ballast or crushed rock up to the top of the ties and over the two tracks and between the tracks, and extending out over the side of the trestle in the same manner and exactly like the dump on either side of the trestle, making it impossible for one at night in walking over the track without making an inspection to discover the same to know that the trestle was there, and although the conductor also knew that as the brakeman returned he would go to the right side of the track to signal the engineer, the caboose being so close to the trestle that if appellee followed the universal custom he would give the signal before he left the trestle, although he knew all of these things, the conductor failed to warn appellee of the dangers attendant upon obeying his orders and in carrying out the order so given, appellee fell from the trestle and was injured.

"Appellee did not know that the trestle was there; he had never stopped closer than one-half mile away and there was no fact or circumstance proven in the case that would tend to show that he knew the trestle was there, while the fact that he fell from the trestle forces the conclusion that he was wholly ignorant of its existence.

"For more than thirty years Conductor Maris ran freight trains between Little Rock and Poplar Bluff, and every train going north for the past six or seven years that stopped at Newport stopped at the Ferry street crossing, and the caboose in which Conductor Maris rode stopped near the trestle or on it, depending on the length of the train, these trains stopping there both day and night; also Guy Maris, the conductor, had worked in the yards at Newport and he knew the location of the trestle, its construction, and knew the dangers attendant upon passing over it at night.

"It was admitted that the conductor gave no warning to appellee of the trestle's being there. . . .

"Appellee was further misled and deceived by encountering a trestle in the yards at Newport without banisters upon it to protect employees of the train called upon to use the tracks for their work.

"The proof conclusively showed that where appellee had been accustomed to work as a brakeman in the yards at Little Rock and on his run to Texarkana, and in all of the yards in all of the towns where trains regularly stopped and employees of the trains used the tracks in their work, where there were trestles or bridges, appellant had provided banisters for the safety of its employees on these trestles and bridges.

"It was shown there were four trestles or bridges in the yards in North Little Rock; that three of them had banisters on each side of the trestle or bridge, and one of them about a mile from the depot in the extreme north end of the yards was protected by a banister on the west side of the trestle, one side only being protected because there being a double track on the trestle and outgoing trains did not stop there and incoming trains that did stop there used the west track and only the west side of the trestle needed protection.

"There were two trestles or bridges in Texarkana, one at Fulton, one at Gurdon, and one at Hot Springs on appellant's line of railroad and at or near each of these trestles or bridges, trains stopped and employees used the tracks in their work over and around these trestles and bridges. At no other town on appellant's railroad south toward Texarkana were there any bridges or trestles. Out in the country where trains were not accustomed to stop and where employees did not use the tracks in their work, there were no banisters on trestles or bridges because none were needed for the safety of employees. . . .

"Appellant in the trial of the case in the lower court attempted to show . . . that the trestle from which appellee fell was not in the yards at Newport and, therefore, it was too remote--not so located that appellant would be called upon to put banisters upon it. The great weight of the testimony was that the trestle was and had been for many years in the yards at Newport and the trains stopped there regularly and that employees of the trains constantly used the tracks at that place for their work. But when it was shown by one of their own witnesses, an engineer, that appellant had put banisters on a trestle two miles farther south toward Little Rock and two miles more remote from the yards at Newport, that ended appellant's contention on that phase of the case.

"Distinguished counsel for appellant at the trial...