Missouri Pacific Railroad Company v. Elvins

• Decision Date: 26 March 1928
• Docket Number: 308
• Citation: 4 S.W.2d 528,176 Ark. 737
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. ELVINS
• Court: Arkansas Supreme Court

4 S.W.2d 528

176 Ark. 737

MISSOURI PACIFIC RAILROAD COMPANY v. ELVINS

No. 308

Supreme Court of Arkansas

March 26, 1928

Appeal from Hempstead Circuit Court; James H. McCollum, Judge affirmed.

STATEMENT OF FACTS.

Jesse J. Elvins instituted this action in the circuit court against the Missouri Pacific Railroad Company to recover damages for personal injuries caused by the negligent operation of one of the defendant's passenger trains while he was driving over a public crossing in Hope, Arkansas. The defendant denied any negligence, and set up in bar of the action a release of all damages executed by the plaintiff.

The record shows that the plaintiff was injured while driving an automobile across a public crossing where the tracks of the Missouri Pacific Railroad Company cross Walnut Street, in Hope, Arkansas. Walnut Street is 36 feet wide between the curbs where it crosses the tracks of the Missouri Pacific Railroad Company in Hope. At that point the railroad runs east and west, and Walnut Street runs north and south. There is a large freight station to the right of the crossing which obstructs the view of any one approaching the railroad tracks from the south. There is a house-track between the freight depot and the main track. North of the main line are several other tracks. There are stop-gates at the crossing operated from a tower, but they were not in use on the day of the accident because they were out of repair. A flagman was stationed at the crossing, whose duty it was to hold up a stop flag when trains were approaching the crossing. Passenger train No. 5 was late on that day. The flagman had held up his stop sign for a passing switch engine. A. E Holstead, who was approaching the crossing from the south in an automobile, saw the switch engine on the north side of the main track, and stopped to let it pass over the crossing. Then he started up his automobile, and drove on across the track. He did not hear any warning of an approaching train by the ringing of a bell or the sounding of a whistle. The crossing watchman or flagman was on the north side of the track, standing with his flag down, talking to other persons. Other witnesses near the scene of the accident said they did not hear the warning of an approaching train by the ringing of a bell or the sounding of a whistle. They also testified that the flagman was standing with his flag down, and did not give any warning of the approach of a train.

According to the testimony of Jesse J. Elvins, the plaintiff, he drove up to the Walnut Street crossing of the Missouri Pacific tracks from the south, and stopped his automobile behind another car which had stopped for the crossing. The gates were open, and he heard no bell or whistle warning him of the approach of a train. He had some acquaintance in Hope, but was not familiar with conditions there. When he saw a man ahead of him drive across the track, he followed. He saw two men on the north of the track, but they did not hold up any stop sign. Just as the plaintiff drove across the first track on the main line, he saw that the train was right in his face, but could not avoid it. The train struck the automobile in which he was riding, and severely injured him. His leg was broken between the knee and the hip.

The plaintiff was carried to a hospital in Hope, and attended by Dr. J. H. Weaver, a resident surgeon at Hope for the Missouri Pacific Hospital Association. The plaintiff was kept in the hospital for about 30 days, with his leg in a cast. During this time the plaintiff talked with the claim agent of the defendant about settling his damages. Dr. Weaver measured his leg every day, and told him that there would be a good alignment of the bones, and that there would only be a normal shortening of the limb amounting to one-half inch. Dr. Weaver told the plaintiff that he would not make an X-ray of his leg, because it might disturb him. He said that the bones had knit together in good alignment, and that he would be up in a couple of weeks and out of the hospital in less than 30 days. Relying on these representations, the plaintiff signed a release of all damages in favor of the railroad company for $ 3,500 and his hospital fees for 30 days. On the day after the settlement an X-ray picture was made of the plaintiff's leg, and it was ascertained that the bones had not united, and Dr. Weaver admitted to the plaintiff that he was responsible to the plaintiff for the condition of his leg. The plaintiff was then carried to Dr. Willis Campbell, at Memphis, Tennessee, and Dr. Campbell performed three operations on his leg. These operations were very painful, but did not cause the bones of the leg to unite. Subsequently an operation was also performed by Dr. Risner of Chicago. None of these operations were successful, and the plaintiff has to wear a brace on his leg to use it. He spent all the money received in settlement for treatment, and $ 800 more. The plaintiff was forty-four years of age, and had contracted a venereal disease while in the army, but had been pronounced cured. He would not have made the settlement if he had known that he was permanently injured. He relied upon the statement of Dr. Weaver to the effect that there would be a good alignment of the bones of his leg and that they had united.

Another witness who was present when the settlement was made corroborated the plaintiff as to the representations made by Dr. Weaver and as to the subsequent fact that the bones of the plaintiff's leg had not united.

According to the evidence of Dr. Willis Campbell, there was no approximation of the ends of the bones. A blood test showed that the plaintiff had had syphilis, and no union of the bones was obtained by the operations performed upon him. The bone showed no sign of syphilis when Dr. Campbell first examined him. Sometimes bones fail to unite in persons who have not had syphilis, and sometimes the bones of persons with syphilis do unite. According to the evidence of the witness, syphilis was the cause in the present case of the bones not uniting. Witness said that he did not believe plaintiff would ever have a normal limb even with a successful bone graft operation.

According to the testimony of Dr. L. M. Lile, the leg of the plaintiff which was injured is of no use, and his injury is permanent.

According to the evidence adduced for the defendant, the bell of the passenger train was ringing and the whistle was sounding as it approached the Walnut Street crossing. The engineer and fireman were both keeping a lookout, but were not able to stop the train after they saw the plaintiff attempting to drive over the crossing. The flagman at the crossing testified that the gates were out of order, and that it was his duty to hold up a stop signal when a train was approaching the crossing. He had held up his stop sign for a switch engine to pass over the crossing. After the switch engine had passed, he lowered his signal and turned to talk to some persons who were near him. He had forgotten that the passenger train in question was late, and did not see it until it was right at the crossing. Other witnesses testified that the flagman had up his signal when the switch engine passed, and that he had it up just as the passenger train in question approached the crossing.

According to the testimony of Dr. J. H. Weaver, he examined the plaintiff after the accident, and found the right femur, the large bone running from the knee to the hip, broken in-two. He put the plaintiff in a wire splint, with a weight extension on it to overcome the rigidity of the muscles. The witness had set a great many bones, and was competent to perform that operation. He put the bones in place at the time he set it. He had three bricks for weights for the first ten days, and for the following ten days he had two bricks. Ordinarily he would expect results in twenty-five or thirty days to permit a removal of the splint. On the next morning after the injury he asked the plaintiff expressly if he had ever had syphilis, and the plaintiff told the doctor he had never had it. The splints were taken off at the end of four weeks, but this was not done with reference to the settlement. It was not necessary to take an X-ray before that time. The witness had been keeping measurements daily and regarded that as his guide. There was no indication of overlapped bones. After removing the splints he took an X-ray, and this showed that there was about one and one-half inch overlap in the bones. If there had been an overlap before the measurements, this would have been shown. If for any reason there is a non-union of the bones, when the splints were removed the contraction of the muscles would misplace the bone. The plaintiff did not lie quietly in bed, and would not leave his extension alone. He would raise up in bed and reach down and take the extensions off his leg. This might have prevented the bone from uniting. Another reason is that syphilis might have prevented the bones from uniting. The witness had nothing to do with the settlement. According to the testimony of this witness and of the claim agent, the plaintiff was anxious to make the settlement, and on several occasions tried to hurry it up.

In rebuttal the plaintiff denied that Dr. Weaver asked him if he had ever had syphilis, and said that if he had he would have told him that he had it while in the army.

The jury returned the following verdict: "We, the jury, find for the plaintiff, and assess his damages in the sum of $ 18,500, less credit of $ 3,500."

Judgment was rendered upon the verdict, and the defendant has appealed to this court.

Judgment affirmed.

E. B. Kinsworthy and R. E. Wiley, for appellant.

Luke F. Monroe and Steve Carrigan, for appellee.

HART C. J. SMITH, J., dissents.

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