Neal v. St. Louis, Iron Mountain & Southern Railway Co

• Decision Date: 14 March 1903
• Citation: 78 S.W. 220,71 Ark. 445
• Parties: NEAL v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO
• Court: Arkansas Supreme Court

78 S.W. 220

71 Ark. 445

NEAL v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO

Supreme Court of Arkansas

March 14, 1903

Appeal from Crawford Circuit Court JEPTHA H. EVANS, Judge.

Reversed.

STATEMENT BY THE COURT.

George W. Taylor was employed by the St. Louis, Iron Mountain & Southern Railway Company as a brakeman on one of its freight trains. On the 18th of January, 1899, the train upon which he worked left Van Buren, Arkansas, for Coffeyville, Kansas. The train reached Salisaw, Indian Territory, about four o'clock in the afternoon, and had two cars to be left at that point. For the purpose of putting these cars on the side track, the train was uncoupled, and the engine, with fourteen or fifteen cars attached, was run about half a mile farther west, leaving the caboose and six cars standing on the main line. After the two cars that were to be left at Salisaw were put on the side track, the twelve or thirteen cars which were attached to the engine were pulled out on the main track, and then pushed or kicked back towards the caboose and cars that had been left on the main track. The conductor of the train mounted the front or last car that was being pushed back in order by the use of the brakes to govern the speed of the train. This car upon which the conductor stood was equipped with the old-fashioned link and pin drawbar. It had a capacity of forty thousand pounds, and was loaded with shingles, which weighed some twenty-three or twenty-four thousand pounds. The car farthest to the west of those cars attached to the caboose, and to which the car on which the conductor rode was to be coupled, had a capacity of sixty thousand pounds, and was loaded with lumber, the weight of which was about equal to the capacity of the car. This car was equipped with an automatic coupler, but the drawhead was fixed so that the link and pin coupler could be used when it was necessary to couple to a car having that coupling. Before these cars came together, Taylor went between them, and inserted the link in the drawhead of the car having the automatic coupler. When the cars were nearly together, he endeavored to get from between the cars, and was caught between the grab irons and the cars, and was killed.

Johnathan Neal was appointed administrator of the estate, and brought this action against the railway company to recover damages alleging that the company was guilty of negligence, in that the drawheads on the cars were not of the standard and uniform height required by an act of congress, and that the injury was caused by this breach of duty on the part of the company.

The defendant answered, and denied the charge of negligence, and denied that it had in any respect failed to comply with the act of Congress mentioned.

After hearing the evidence on the part of the plaintiff, the circuit court held that plaintiff had failed to make out a case, and directed a verdict and judgment for the defendant. Plaintiff appealed.

Judgment reversed and new trial ordered.

Chew & Fitzhugh and N. H. Neal, for appellant.

It was error to direct a verdict for defendant. 33 Ark. 370; 35 Ark 146; 36 Ark. 451; 39 Ark. 491; 62 Ark. 63; 57 Ark. 461; 66 Ark. 363.

Dodge & Johnson and Oscar L. Miles, for appellee.

The burden was upon the plaintiff to prove negligence on the part of the defendant, and to overcome the presumptions that the master had furnished suitable and safe appliances, and that in undertaking his employment as servant, he assumed the hazard which occasioned his injury. Thomp. Neg., 1053; Wood, Mast. & Serv., § 382; Shearman & Redf., Neg., § 99; 46 Ark. 569; 46 Ark. 555; 67 Ark. 301.

OPINION

RIDDICK, J., (after stating the facts).

This is an action against a railway company to recover damages caused by the death of George Taylor, one of its employes. The plaintiff is the administrator of the estate of Taylor, and he alleges that Taylor's death was occasioned by the failure of the company, while engaged in interstate commerce, to provide its cars with drawbars of uniform and standard heights, as required by an act of Congress. The circuit court, after hearing the evidence on the trial, held that plaintiff had failed to make out a case, and directed a verdict for the defendant. The question before us is whether the evidence was sufficient to require that the case be submitted to the jury for its decision.

The practice of directing a verdict for the defendant when it is clear that the evidence is not sufficient to make out a case for plaintiff is a wise one, for it saves time and costs, and expedites the business of the court; but a case should not be withdrawn from the jury in that way unless it can be sad as a matter of law that no recovery can be had upon any reasonable view of the facts which the evidence tends to establish. Catlett v. Railway Company, 57 Ark. 461; Texas & P. Ry. Co. v. Cox, 145 U.S. 593; 6 Enc. Plead. & Prac. 679-680, 36 L.Ed. 829, 12 S.Ct. 905.

In order to determine whether it was proper to direct a verdict in this case, we must notice the facts which the evidence tends to establish and also the law bearing on the same.

The act of Congress upon which plaintiff bases his right of action was passed for the protection of employees of railroad companies engaged in interstate commerce and for other purposes. It authorized the interstate commerce commission to promulgate an order that "the standard height of drawbars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the drawbars, for standard gauge railroads in the United States, shall be 34 1/2; inches, and the maximum variation from such standard height to be allowed between the drawbars of empty and loaded cars shall be three inches." Act of Congress March 2, 1893.

Now the conductor of the train upon which Taylor was employed testified that, as the two cars which Taylor was endeavoring to couple came together, the witness, who was standing on one of the cars, noticed that the drawhead of the car having the common drawbar was from two to three inches higher than the drawbar of the other car having the automatic coupling. He further stated that the face of a common drawbar is only five or six inches in width, while that of the automatic drawbar is eight inches in width, and it follows that if the centers of these drawbars had been even, the top of the common drawbar would...