Railway Co. v. Hammond

• Decision Date: 06 January 1894
• Citation: 24 S.W. 723,58 Ark. 324
• Parties: RAILWAY COMPANY v. HAMMOND
• Court: Arkansas Supreme Court

24 S.W. 723

58 Ark. 324

RAILWAY COMPANY v. HAMMOND

Supreme Court of Arkansas

January 6, 1894

Appeals from Fulton Circuit Court, JOHN H. WOODS, Special Judge.

Action by Hammond, as administrator of Geo. C. Golden, deceased against the Kansas City, Fort Scott & Memphis Railway Company. The facts are stated by the court as follows:--

The appellee, administrator, as plaintiff, instituted this action in the Fulton circuit court to recover of appellant company as defendant, damages in the sum of $ 5000, for the negligent killing of George C. Golden, his intestate, for the use and benefit of James O. Golden, father of and next of kin to deceased. Verdict for $ 1300. Motion for new trial made and overruled. Exceptions taken. Appeal taken, and bill of exceptions tendered and certified.

The complaint, omitting merely formal part and description of parties, is as follows, to-wit: "That on the day and year aforesaid, (31st May 1889,)the said George C. Golden, in the line of his employment, and under the direction of the agent, who was in charge of said rock quarry, was on board of a hand-car, proceeding from said rock quarry, over the defendant company's railroad, to the station of Ravenden in Lawrence county, Arkansas, when said Golden was, by the negligence of defendant and its servants, run over by a freight train running on said defendant company's railroad, and, without fault or negligence on his part, then and there killed. And plaintiff avers that the death of said Golden was caused by the negligence of defendant company, its servants and employees, in this: (1) The said freight train was a special or extra train, not running on the time of any regular train, and that the agents of defendant company whose duty it was to regulate the running and time of all trains, were guilty of negligence in not informing the agent of the company in charge of said quarry when said train would pass the quarry. (2) The engineer in charge of said train neglected to sound the whistle or give the usual and necessary notice of the approach of said train to said rock quarry; and that if said notice had been given, the plaintiff's intestate would have heard it, and have been thereby enabled to get off the track and avoid the danger of said train. (3) The company's foreman in charge of said rock quarry was guilty of gross negligence in requiring or procuring said deceased to be on the railroad track at that time when he was exposed to the danger of trains running on irregular time; he, the said plaintiff, being young, and wholly inexperienced in all matters pertaining to the running of trains or railroads; and plaintiff alleges that said killing was without fault of said intestate, and could not have been prevented by him. That said decedent, George C. Golden, was unmarried, and left, him surviving, as his sole heir at law, his father, James O. Golden, a resident of Fulton county, Arkansas, who is about 57 years of age, and is, and was at the date of his said son's death, in feeble health. That said James O. Golden, with his wife, the mother of said deceased, Rebecca Golden, who is fifty-two years of age and an invalid, was wholly dependent upon said decedent for a support and maintenance, and for such care and attention as the parent's situation in life needed and required, he residing with them, and that, by reason of the death of said decedent, said James O. Golden has been damaged in the sum of $ 5000. Wherefore, plaintiff prays judgment for said sum of $ 5000, and for other relief."

The defendant, answering, specifically denied each of the material allegations, and further denied that it was the duty of the defendant, its agents or servants, to notify the agent in charge of the quarry of the passage of the extra freight train; that the engineer in charge of the extra train neglected to sound the whistle or to give the usual signal of the approach of his train to the quarry, and that it was his duty to give such notice on his approach to said quarry, and that, if said notice had been given, plaintiff's intestate would have heard it, and therefore been enabled to get off the track, on the approach of the train, so as to avoid being killed thereby; that the foreman in charge of quarry was guilty of gross negligence, or any negligence, in requiring or having deceased to get on said hand-car, or that he was exposed to any danger by being thereon, from the running of any trains. And further defendant alleges that if deceased came to his death by the negligence of the engineer or any of the trainmen on the freight train, or of any of the men on the hand-car at the time of the accident, then, in either case, all being but fellow servants of deceased, the plaintiff could not recover; that deceased came to his death by and through his own contributory negligence in negligently jumping backwards and alighting in front of the hand-car then in motion.

The deceased, Geo. C. Golden, about three days before his death, was employed by James Sellers, the defendant company's foreman, as one of the hands to work under him at the company's rock quarry, on its railroad, about two and one half miles east of Ravenden, a depot on its road, and the nearest telegraph station to the quarry. Sellers had authority, or exercised the authority, to employ and discharge hands at his pleasure. R. J. and A. K. Welsh, 24 and 22 years of age, respectively, Were employed by him about the same time as was Golden, who was about 21 years old. Golden is not shown to have had any experience in the line of that employment, nor in railroading. Neither is it shown very satisfactorily that he was without experience, He was reared as a farmer's boy, but had worked two years at saw-milling, and is shown to have been a stout young man, and a good hand to work, and devoted a portion of his earnings to the support of his father, 57 years old, and his mother, 52 years old, both feeble and unable to support themselves, being without means and without any real estate. The plaintiff is shown to have been duly appointed and qualified as administrator of the estate of the deceased.

On the 31st day of May, 1889, at the request of their foreman, Sellers, the deceased and the Welsh brothers boarded a hand-car standing on the track at the quarry, with the foreman, and started for Ravenden, for the purpose of enabling the foreman to make report to higher officials of the railroad as to number of cars that were loaded at the quarry and ready to be taken out by a subsequent train.

The three young men were merely engaged in propelling the hand-car by working the lever; the Welsh brothers being on the rear end and looking forward, and Golden on the front end looking backward. At first the foreman stood on front end with Golden, and while there, warned him to keep a lookout as an extra train might come along at any time, as he said. Such was his testimony, although nothing was said of this by the Welsh brothers in their testimony.

When they had proceeded about one-half or three-fourths of a mile from the quarry, (at what speed it is not shown,) and after passing around a curve in the road, occasioned by a hill, and while on the farther end of the curve, they were seemingly thrown into a state of excitement, by the sounding of a whistle of the engine of an extra freight train of twenty-five or thirty cars, and running at the rate of twenty or twenty-five miles an hour, and approaching from the rear of the hand-car. The foreman immediately ordered the brakes to be put on, and this was at once done by the Welsh brothers, and then they both jumped off as did the foreman, one of the Welshes to the one side and the other and the foreman to the other, while Golden either jumped or fell off backwards in the middle of the track with his face upwards, and the hand-car then but slowly moving passed over him, and he, probably in his fright, catching hold of the front end, held on with such tenacity that the foreman, with all his efforts, could not release him from the hand-car. In this condition and situation, the train, with speed then reduced to fourteen or fifteen miles an hour, struck the hand-car, knocked it off the track, and passed over Golden its entire length, killing him instantly.

Between the time the whistle was sounded and the collision, the hand-car had moved about sixty-five feet, and the train had gone between 500 and 600 feet in addition, it being about that distance from the hand-car when the whistle sounded.

The testimony of foreman Sellers, testifying for defendant company, is to the effect that Golden, from his position, looking back towards the approaching train, should have seen it at a distance of 1000 feet, had he kept a proper lookout. The testimony of Anderson, the engineer on the freight train, testifying for defendant also, is to the effect that, being at his post in the cab of the engine, as soon as he saw the hand-car he blew the whistle, and sounded "down brakes" time and again, and as rapidly as he could to be understood.

Other matters in evidence will be referred to in the opinion, should occasion demand such reference.

Reversed and remanded.

Wallace Pratt and Olden & Orr for appellant.

1. The allegations of the complaint do not constitute negligence. There was no rule of the company requiring the whistle to sound in passing a quarry, and it was not negligence in the company to fail to make such a rule or regulation. 52 N.W. 153; 7 S.E. 119; Patterson, Ry. Ac. Law, p. 160; 109 U.S. 477-485; 19 S.W. 38. There was no crossing at the. quarry.

2. If defendant is liable at all, it must be for negligence committed at the time, and not for what it might have done, and the result of such probable acts upon the deceased.11 N.W. 24; 2 P. 748; 2 N.E. 185.

3. Golden was fully...