Scullin v. Thomason
| Decision Date | 17 January 1916 |
| Docket Number | 111 |
| Citation | 182 S.W. 285,122 Ark. 33 |
| Parties | SCULLIN, et al., RECEIVERS MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. THOMASON |
| Court | Arkansas Supreme Court |
Appeal from Carroll Circuit Court; J. S. Maples, Judge; reversed.
Judgment reversed and cause dismissed.
W. B Smith, J. Merrick Moore and H. M. Trieber, for appellants.
1. This case comes within Federal Employer's Liability Act, and the evidence clearly shows it to be one of assumed risk. 233 U.S. 492. No appliances were out of order or defective, nor was there any violation of the Safety Appliance Acts. 95 Ark 560; 90 Id. 387; 56 Id. 232. Jerks and other movements in operating freight trains are common and necessary. In no other way can such trains be handled, and an experienced brakeman is held chargeable with notice and knowledge that they are likely to occur. This is one of the ordinary risks incident to employment. 161 S.W. 246; 47 Id. 922; 167 Id. 128.
The doctrine of assumed and continued risks is well illustrated by the blocked frog cases. 82 Ark. 11; 53 Id. 117; 54 Id. 389; 77 Ark. 367. See, also, 89 Ark. 427; 93 Id. 564; 104 Id. 489; 113 Id. 86.
2. The evidence leaves the whole question to speculation and conjecture and hence not sufficient to sustain the verdict. 76 S.W. 502.
3. Injury or death caused by the running of a train to an employee engaged in the operation of the train raises no presumption of negligence or liability. 100 Ark. 467; 100 Id. 426.
H. A Gardner, for appellee.
1. This is not a case where the cause of death is wholly speculative or conjectural. The court submitted the case to a jury on instructions embodying two grounds of negligence, viz.:
Negligently shoving the train backward without signal or warning. (2) In negligently backing the engine and cars when same could have been pulled forward under the spout of the tank.
A railroad is liable for damages "for injuries done or caused by running its trains." Circumstantial evidence is sufficient to submit the case to a jury, and their finding as to negligence is conclusive. 172 Mo.App. 334. Plaintiff has met the requirements that he must establish negligence or show facts from which the jury may reasonably infer that the company was negligent. 73 Mo. 219-233. The presumption is that deceased was in the exercise of ordinary care, and this presumption is not overcome by the mere fact of injury. 171 Mo.App. 173; 106 Id. 657; 80 S.W. 364; 100 Mo. 680; 227 Id. 366; 177 Mo.App. 296; 157 S.W. 1016; 156 Id. 4; 73 Mo. 233; 133 Mo.App. 149; 191 U.S. 65; 81 A. 440.
The negligence of the company and the proximate cause of death were properly submitted to the jury. 227 Pa. 66; 75 A. 991; 165 F. 869; 24 L. R. A. 531; 29 A. 151; 78 Id. 37; 191 U.S. 64; 196 Id. 51; 119 F. 293; 150 U.S. 349; 170 Id. 665, etc.
2. Failure to use or exercise ordinary care is an extraordinary risk which servants do not assume. 204 Mo. 507, 521; 207 Id. 416; 124 Mo.App. 619; 125 Id. 193; 135 Mo.App. 671; 58 U.S. Law. Ed. 1070; 174 S.W. 129; 58 L.Ed. U.S. 912.
3. Deceased's contributory negligence is no defense; and there was no assumed risk. 205 U.S. 1; 169 F. 372; 106 S.W. 441; 94 C. C. A. 657. No proper signal was given as required by the rules of the company.
This is an action to recover damages on account of injuries sustained by reason of the death of plaintiff's intestate while working as brakeman in the service of the receivers of the railroad company. The train on which plaintiff's intestate was working was being operated in interstate traffic and plaintiff's cause of action, if any existed, is based upon the Federal statute regulating the liability of railroad employers. There was a judgment below in plaintiff's favor and the defendants have appealed.
Plaintiff's intestate, Lee Thomason, was head brakeman on a freight train, and was killed about midnight at Everton, a station in Boone County, Arkansas. There was a tank at the station, and the train, as it came to the station, was stopped at the tank for the purpose of taking water. Shortly thereafter Thomason's dead body was found under the front trucks of an oil tank car, which was the second car back of the engine. The conductor of the train, who was introduced as a witness by plaintiff, testified that when the train stopped at the tank he got out, as usual, for the purpose of walking up alongside of the train to make a casual examination as to the condition of the train, and that in making this examination he found the body of Thomason, as before stated. He testified that the last time he saw Thomason was at St. Joe, the last station at which the train was stopped before reaching Everton. There was no direct testimony showing how Thomason came to his death, but the plaintiff introduced two witnesses whose testimony tended to show that he fell from the train while the train was being "spotted" for the water tank. The two witnesses were men who were out in front of a house a short distance from the tank, and they testified that as the train approached the tank, they saw the light of a lantern moving along the side of the oil tank car, which was a short distance behind the engine. They could not see the man holding the lantern, but could tell from the movement that it was in the hands of some person moving along the side of the tank car. They saw the reflection of the light on the side of the oil tank, and on the end of the box car in front. They testified that the train came to a stop, and immediately moved slightly backward, and then forward, and that as this movement was made, they saw the lantern fall from the side of the car. The testimony of those two witnesses justifies the inference that Thomason was walking along the running board on the tank car with his lantern in his hand, and that the jerk or movement of the train threw him off, and that he fell under the trucks and was killed. The testimony also warrants the finding that no signal was given of the movement of the train, and the plaintiff contends that this was in violation of one of the rules of the company, which provides that a signal of three blasts is to be given to indicate the backing of the train when standing. It is not contended that there was negligence in any other respect, and it must be conceded that unless the rules just referred to applied to the movement of the train when "spotting" the tender at the tank, there was no negligence of the trainmen which would render the defendants liable in this case.
We are of the opinion that, according to the undisputed evidence in this case, the train was not being moved within the meaning of the rules which require the giving of signals. The only testimony on the subject was adduced by the plaintiff, and the testimony of each of the three witnesses who testified on that subject (including the conductor) shows that the train was not being moved, but that merely the slack was being taken up in the effort to "spot" the tender of the engine at the spout of the tank. The conductor testified that he was in the caboose when the train came to a stop at the tank, and that there was no other movement of the whole train. He said that the caboose did not move at all. The other two witnesses merely said that the train was being lined up or "spotted" at the tank, and that when it first stopped there was a backward movement, and then a forward movement without signals being given. Viewing this testimony in its strongest light, it does not warrant the inference that the train was being moved about, except that the slack was being taken up and a slight movement forward to connect the spout of the tank with the tender of the engine so as to take water.
The testimony of one of the witnesses on this point is as follows:
Q. Now, as you stood there watching, did the train stop or did the train go through the station?
A. Stopped there.
Q. Did it come to a full stop?
A. I couldn't tell for sure--it stopped there to take water, and of course, they come to the full stop for that purpose.
Q. As you noticed it did stop?
A. Yes, it stopped there right smart little while.
Q. Now, then, what did it do after it stopped?
A. I couldn't tell you; I went to bed.
Q. But before you went to bed while you were out there when the train stopped, what occurred immediately after it stopped, or soon after?
A. Never noticed anything unusual; I saw a light behind the engine drop down, but I just supposed it was a brakeman or conductor.
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Q. What was done just before the light...
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