Missouri Pacific Railroad Company v. Shores

• Decision Date: 07 January 1946
• Docket Number: 4-7789
• Citation: 191 S.W.2d 580,209 Ark. 539
• Parties: Missouri Pacific Railroad Company, Thompson, Trustee, v. Shores
• Court: Arkansas Supreme Court

191 S.W.2d 580

209 Ark. 539

Missouri Pacific Railroad Company, Thompson, Trustee, v. Shores

No. 4-7789

Supreme Court of Arkansas

January 7, 1946

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge.

Reversed.

Thomas B. Pryor, Thomas Harper and Harrell Harper, for appellant.

Howell & Howell, for appellee.

Robins J.

OPINION

Appellee, "extra gang" laborer, while working on appellant's track, was struck and severely injured by a block of ice which fell or was thrown from a passing troop train. In his suit for damages against appellant a jury awarded him verdict for $ 4,000; and from judgment entered thereon this appeal is prosecuted.

These grounds for recovery were set up by appellee in his complaint:

1. That the railroad company's employees negligently allowed the doors of the baggage car to remain open while the train was running, and that it negligently caused or permitted the ice to fall therefrom.

2. That the company, its agents and servants negligently loaded the ice in the car "without securely fastening it therein to prevent it from falling therefrom."

3. That the railroad company "negligently failed to exercise ordinary and reasonable care to make reasonable inspection of the load thereon to determine whether or not same was reasonably safe there for transportation."

4. That the train was negligently operated at a high rate of speed over the track along which appellee and other employees were working.

Appellant's answer was a general denial and plea of contributory negligence.

The lower court, in its instructions, submitted to the jury as grounds for recovery only the alleged negligent failure of appellant to load the ice properly and to make proper inspection as to the manner of such loading.

There was little, if any, conflict in the testimony. The troop train in question carried thirteen cars, consisting of (beginning from the rear) five Pullmans, two baggage cars used for kitchen cars, five more Pullmans and a baggage car next to the locomotive. Two officers and 365 enlisted men were on the train.

Ben Peevy testified for appellee that he was working in the gang with appellee about two and one-half miles east of Alma; that appellee was injured by ice that was pushed out of the wide door of a car in the train; that another member of his crew had been injured by ice coming from a train.

B. C Burkett testified for appellee that he was the agent of appellant at Van Buren; that when a train filled with soldiers is carried between Little Rock and Van Buren it has the railroad's crew, consisting of engineer, fireman, conductor and flagman; that troop sleepers are owned by the government, Pullman cars are owned by the Pullman Company and the coaches are owned by the railroad company, and the equipment is owned by the government; that the movement of the train is under the control of the train crew; that the train itself is in charge of the troop or train commander.

Charles Patillo testified for appellee that he was working with appellee when he was struck by the ice; that he did not know who opened the door or who pushed the ice out; that some other ice came from the train a short distance back.

Appellee testified that he thought "it might be an empty troop train . . ."; that he "couldn't see anybody"; that the doors of the baggage car were open; that the ice came from an open door; that during the period he had worked on the track he saw things thrown from a train an average of once a week; that he didn't see this piece of ice until it hit his knee, but assumed it came out of the baggage car; that he did see the door open when he looked up, but didn't know how long it had been open or who opened it.

H. H. Conger, chief clerk to assistant superintendent of appellant, testified for appellee that in the movement of troop trains the crew has nothing to do with the kitchen car; that the government equips it with any devices it wants to keep the soldiers from falling out; that what is within the car belongs to the government and the crew is only responsible for the safe operation of the train from one terminal to another; that the train commander is in charge; that at the time the kitchen car is ordered and placed at a point of origin the government will equip it with ice which belongs to the government; that if ice is needed the train commander will wire ahead and it is placed in the door and paid for by the commander; that the government takes charge of the car, loads it, puts ice in and the railroad company has nothing to do with loading or the manner in which it is loaded; that the train commander supervises the loading and the railroad company makes no inspection as to whether it is done in the proper manner, but leaves it all up to the government; that the train commander has probably had railroad experience; that this particular train originated at Ft. Bragg, North Carolina, from where it was carried to Memphis by the Frisco and there delivered to appellant, to be transported to Camp Gruber, Oklahoma.

Sam Manager testified for appellee that he was on the other (north) side of the track from appellee when appellee was injured; that as the train passed they threw out a lot of garbage on the south side and threw out pieces of ice; that he doesn't know who threw this stuff off.

H. M. Cook, a witness for appellant, testified that he was conductor on the train in question; that there were 365 men and two officers aboard the train; that there was a train commander who "is absolutely in command"; that the only time witness is in the kitchen cars is when there is an accident and he then notifies the military guards that he has to go through; that is the only time he is permitted in the kitchen cars and this applies to the other trainmen on all military trains; that he knew nothing about the ice hitting anyone until he was subpoenaed to court; that the train commander is in charge of the kitchen car, the cooking and supplies, that witness has nothing to do with it; that when he took charge of the train he did not go into the cars and inspect the load, or the personnel, or the baggage or the contents of the car; that no member of the crew made such inspection; "we are not allowed to go through there unless something happens . . . that is up to the train commander."

Other members of the train crew gave testimony similar to that of Cook.

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