Railway Co. v. Jagerman

• Decision Date: 05 May 1894
• Parties: RAILWAY COMPANY v. JAGERMAN
• Court: Arkansas Supreme Court

26 S.W. 591

59 Ark. 98

RAILWAY COMPANY v. JAGERMAN

Supreme Court of Arkansas

May 5, 1894

APPEAL from Jefferson Circuit Court, JOHN M. ELLIOTT, Judge.

Action by Allie E. Jagerman, as executrix of Frank Jagerman deceased, against the St. Louis and Southwestern Railway Company, to recover damages for the killing of her testator. The case is stated by the court as follows:

This is an appeal from a judgment against the railroad for damages on account of the death of Frank Jagerman, which was caused by a wreck on appellant's road, at Jonesboro Stave Company's switch, on May 19th, 1891, by the derailment and overturning of an engine on appellant's road, upon which the deceased was at the time acting as fireman, in the employment of the appellant.

The complaint alleged that the "railroad had failed in the duty it owed to the deceased to provide him a good, safe and secure railroad track, and secure machinery and apparatus with which to operate their (its) trains upon defendant's railroad, and conducted itself so carelessly, negligently and unskilfully in this behalf that it provided and used an unsafe and dangerous railroad track, turn-outs and switch connections, of which it had due notice, in that the switch turn-outs, or spur connection, on its railroad near Jonesboro, were so carelessly and negligently constructed and arranged, as to be wholly unsafe and dangerous to trains passing north over its railroad."

The answer denied all negligence, and stated that the machinery appliances, switches, etc., of its road were not defective and, if they were, that the defendant did not know it, and that it was not negligently ignorant thereof, and that, if defects existed or occurred, they were but risks incident to the employment of the deceased, of which he had notice, etc.

The evidence tended to show that, as the engine on which the deceased was fireman went north over the appellant's road, it was wrecked in the night, between 8 and 9 o'clock, and that the deceased was killed by its derailment and overturning; that the switch at which the accident occurred was an approved split switch in general use on railroads in the South; that it was of the best kind of switch, was in good order and condition, after the accident, save some breaks caused by the overturning of the engine; that, about twenty minutes before the accident, a heavy freight train had passed over it; that the switch was examined after the wreck, and nothing appeared wrong with it, but that it was half open; that it was in first-class working order. The witnesses were unable to account for the accident.

G. L. Clements testified: "My information is that the front wheels of the locomotive ran down the main track, and the driving wheels took the side track, and the baggage car and express car followed the driving wheels of the locomotive; also the tender tank." He then proceeds to explain that this information was obtained by an inspection of the track and the condition of the wreck. Mr. Clements, the witness, was the yardmaster of the defendant at Jonesboro, and was at the scene of the accident in forty minutes after it happened.

J. B. Carpenter testified: "It looked to me as though the locomotive had followed the main track, and the car next to it had taken this track (meaning the side track). As a matter of course, it went this way, and afterwards turned the locomotive over." (Illustrating). Witness illustrates this fact and explains the cause of the accident as follows: Q. "Could that have been possibly done if there had not been a defect in the switch?" A. "I don't know if I'm a railroader enough to tell about that, but I should have judged that, after the locomotive had passed, the engine, in going over, partially opened the switch, and the next car on it took the switch to the track here. That was my opinion."

Against the objection of the defendant, the court, at the request of the plaintiff, gave the following instructions:

"1. When defendant corporation employed the deceased as a fireman, it assumed a duty to the deceased to provide him with a reasonably safe place and surroundings, and with reasonable safeguards against danger, so as not to materially increase the danger attending the work required of said deceased as such fireman. The deceased assumed the natural risks incident to such employment, but did not assume any increased risks not incident to such employment, nor did he assume the risks incident to the negligence of the defendant corporation.

"3. When the employment is hazardous, the employer assumes the duty of exercising reasonable care and prudence to provide the servant he employs a reasonably safe place and surroundings to exercise the employment, and to maintain, at all times during such employment, reasonable safeguards against accident while so engaged.

"7. If the jury believe from the evidence that the switch complained of was so carelessly and negligently arranged, constructed or set up, or from use had become dangerous, and the plaintiff's intestate was not acquainted with its dangerous condition, and lost his life by reason thereof, while in the course of his duty, then they will find for the plaintiff.

"8. The defendant company owed to deceased, as an incident to his employment, that it would furnish good and well constructed machinery, adapted to the purpose of its use, and to use all means in its power to furnish a proper track, switches, and keep the same in good repair; and if they failed in this, and an injury results to one of its employees, the defendant company is liable."

Which are all we deem it necessary to notice.

Judgment reversed and cause remanded.

J. M. & J. G. Taylor and Sam H. West for appellant.

1. The first, second and sixth instructions given for plaintiff were condemned in 19 S.W. 600 as ambiguous and misleading. The railroad company strictly complied with the law, as laid down in 44 Ark. 529; 47 Mo. 508; 45 Ark. 256.

2. The eighth instruction is in contravention of the doctrine in 44 Ark. 529; Ray on Negl. of Imposed Duties, pp. 141-142; 47 Mo 508. See also 48...