Plumlee v. St. Louis Southwestern R. Co.

• Decision Date: 17 February 1908
• Citation: 109 S.W. 515
• Parties: PLUMLEE v. ST. LOUIS SOUTHWESTERN R. CO.
• Court: Arkansas Supreme Court

109 S.W. 515

PLUMLEE v. ST. LOUIS SOUTHWESTERN R. CO.

Supreme Court of Arkansas.

February 17, 1908.

Appeal from Circuit Court, Monroe County; Eugene Lankford, Judge.

Action by J. H. Plumlee, administrator, against the St. Louis Southwestern Railroad Company. Judgment for defendant, and from an order overruling a motion for a new trial plaintiff appeals. Affirmed.

The motion for a new trial referred to in the statement by the court is as follows:

"Plaintiff moves the court to grant him a new trial herein. He states: That the reasons are apparent why the same should be granted. That the great variance in the testimony of this trial, especially by the defendant's witnesses and their testimony at the former trial, which was appealed to the Supreme Court, is alone sufficient to indicate to the court that a fair and impartial trial has not been heard herein.

"(1) The verdict is contrary to law.

"(2) The verdict is contrary to the evidence herein.

"(3) The verdict is contrary to the law and the evidence.

"(4) The court erred in modifying the third instruction as asked for by plaintiff.

"(5) The court erred in giving the tenth instruction for defendant, which is written on manila paper, `City 56 Ark. 206 at the top,' as said instruction was confusing.

"(6) The plaintiff was taken by surprise by the evidence of one Watkins, the section foreman, that said section foreman had been sued jointly with the other defendants herein, and summons had been issued from the circuit clerk of this county to the sheriffs of the following counties: Clay, Green, Craighead, Jefferson, Ouachita, and Miller — but said sheriffs failed to find said Watkins at the former trial, or at this trial.

"(7) The defendant was surprised by the testimony of any and all witnesses for the defense, especially Ed Roland and one Peal, who said the car was running at the rate of 15 miles an hour, and the said Ed Roland and all other witnesses at the former trial testified that said car was not running over 8 or 10 miles an hour, as the records in the former trial and which the transcript to the Supreme Court fully show, which former testimony plaintiff asks to be considered, and he here introduces transcript in this case in evidence upon this motion.

"(8) He states that said Ed Roland also testified at the former trial in regard to the wheels being fastened to the front axles as follows: Question: `How were the front wheels fastened to the axle, the front wheels the way they were going? Answer: Why, they had some play. They were the cog wheels, and they have to have some play in order to run the car.'

"(9) They were taken by surprise by the testimony of one Peal, who was never introduced as a witness before, and who testified that said car was running at the rate of 15 miles an hour. But said Peal had stated to other parties, as plaintiff has learned since the trial herein, that said car was not running at the rate of over 8 or 10 miles an hour, and at other times he states that he had no idea at all what rate of speed the car was running.

"(10) They state as to the testimony of one Huddleston, who claimed to be special section foreman of that section in March prior to the accident, that said testimony was misleading, and said witness had never been summoned before in this case.

"(11) Plaintiff states that he did not know that said Watkins had come back into this country, as it was admitted that he had been living in Kansas ever since the summer after the injury. That the plaintiff, the administrator herein, nor the plaintiff's attorney, did not know said Watkins was in attendance as a witness until after the trial had begun, and then neither knew him when they saw him. That said Watkins testified that the car was in good condition in every way, and that there were no defects in any way, which was not only a surprise to the plaintiff, but which was false. That immediately after the trial was over the plaintiff had a talk himself with the said Watkins in the courthouse yard, in which conversation he asked said Watkins why he (said Watkins) changed the trucks on the car that caused the injury soon after the accident, to which Watkins answered: `That when he went to Keeville there was an old worn-out hand car lying on the platform at Keeville; that he did not know how long it had been there; that Mr. Barnett, the road master, told him that he might use any part of the old worn-out car for any purpose he saw proper; that he took the pair of trucks off of this old worn-out car, and put it on the new car, and then framed up the old car and sent it in to the company. His reason for changing was because one of the axies on the car he was using was sprung.' This is shown by the affidavit of the plaintiff herein.

"(12) That on the night on which A. J. Hopkins lay a corpse at Keeville said Watkins came down to the house where the neighbors were sitting up with said corpse; that said Watkins expressed his sorrow at the said accident, and told one Kelly `that he had condemned this car some time prior to the injury, and had made requisition on the company for another car, but they had failed to send him one.' This is shown by the affidavit of said Kelly.

"(13) He says that the testimony of Ed Roland at the former trial, and the testimony at the present trial, was conflicting in most all material matters, and that he here introduces the records in the former trial, that is, the transcript of the Supreme Court in this case, and asks that it be considered on the hearing of this motion and considered a part of the record herein.

"(14) That the measures made by W. A. Brady, the claim agent, where the car is supposed to have left the track, are mere speculations, and misleading to the jury. That the defense changed its theory entirely by their expert testimony, as shown by the records introduced herein. They contended, then, the car was derailed before by reason of the light load, and that 6 to 10 men were an ordinary load. This theory they abandoned. The defense admitted that 15 miles an hour was safe speed, and at the present trial did not admit that 15 miles an hour was safe speed, but was more or less dangerous. That the two experts, Huddleston and Davis, varied fatally as to the distance the car would have run after leaving the track when running at the rate of 8 or 10 miles an hour, or 15 to 20 miles an hour.

"(15) One expert claimed that, if running over 15 miles an hour, the car would turn to one side at once, and would not go any distance up the track. The other expert stated that, if the car went 32 feet, it was running more than 15 miles an hour. That such testimony was misleading and confusing to the jury. Plaintiff introduces former record here to show that defendants have changed its testimony and theory as to why the car left the track, and the conflict in the evidence of said expert.

"(16) Plaintiff was taken by surprise by the evidence of said Watkins, the section foreman, of Huddleston and Peal who had never been introduced before, and plaintiff did not know that they were witnesses until after the trial began.

"(17) They state that they did not know until since the trial that they could prove by Kelly that Watkins had condemned the car prior to the injury, nor could they have learned same by any reasonable diligence.

"(18) Plaintiff states they asked time to get proper testimony to show that Ed Roland's statements and the other witnesses in this case were incorrect, as the records in this case show.

"(19) They state that the evidence as shown by J. H. Plumlee's affidavit and Kelly's affidavit was newly discovered evidence since the trial herein.

"(20) Plaintiff files the affidavit of J. D. Hood, which shows that said car was defective at the time of the injury, which testimony the plaintiff has learned since the trial herein.

"(21) They file the affidavit of G. B. Fuller, which shows that Ed Roland swore the day of the coroner's inquest that the car was not running over 8 or 10 miles an hour; that the car was out of repair, and should have been burned up long before the injury; also that there was a low joint at the place the car left the track of three-quarters of an inch.

"(22) They ask leave to file the affidavits of other parties showing that Ed Roland and Watkins, the section foreman, both knew that the car was out of repair prior to the injury, and that the section foreman had condemned the car prior to the injury. They may desire to introduce some witnesses before the court on the hearing of this motion.

"Wherefore plaintiff states that it is apparent that a fair and impartial trial has not been had herein. They pray that a new trial be granted."

Additional grounds for motion for new trial:

"(1) That Ed Roland soon after the injury herein told S. R. Hicks that the car on which Hopkins was killed was `unsafe', which is shown by the affidavit of said Hicks filed herein, and that plaintiff never knew of said testimony until after trial, and no amount of diligence would have obtained same.

"(2) Also that said Watkins stated to said Hicks that said car was `unsafe.' That Watkins was on said car when the cogs slipped and caused the car to derail. Said Hicks also knew when the trucks were changed just after the injury and a pair of old worn-out trucks put on, which trucks came off of a push car. He also knew that the axle of this car was sprung.

"(3) That he files the affidavit of J. N. O'Hare, which supports that of Hicks. That the evidence of J. D. Hicks, Fuller, Elias Kelly, S. R. Hicks, and J. N. O'Hare, and the admission of Watkins to the plaintiff, are all newly discovered evidence since the trial herein, and that no diligence would have developed same prior to trial.

"(4) Court erred in not allowing plaintiff to refresh witness O'Rear's mind by reading his former statement.

"(5) Court erred in excluding from jury message from Peck, superintendent, about removing tree, as stated by witness Thompson.

"(6) Court...