St. Louis, I. M. & S. Ry. Co. v. Davis

• Decision Date: 10 January 1910
• Citation: 124 S.W. 754
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. DAVIS.
• Court: Arkansas Supreme Court

124 S.W. 754

ST. LOUIS, I. M. & S. RY. CO. v. DAVIS.

Supreme Court of Arkansas.

January 10, 1910.

Appeal from Circuit Court, Cross County; Frank Smith, Judge.

Action by Mrs. Annie Davis, administratrix, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. H. Davis was a brakeman in the employ of appellant. On the 22d day of August, 1908, he had charge of the "switching list" at Marianna, and in consequence thereof it was his duty to direct how the switching was to be done. It was the duty of the other members of the crew, the engineer, fireman, and brakeman, to follow the directions of Davis in making whatever switching was necessary in the yards at Marianna after the train arrived there that day. The train came into Marianna from the South and was cut in two in the edge of town. The engine, with three or four cars, was moved northward toward the depot. The crew accompanying it consisted of the engineer, the fireman, another brakeman named Holland, and Davis. To make the statement intelligible we will use the plat that was in evidence.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

"B, M, C," is a switch connecting the main track and the passing or house track, "A, D, C, T." When the engine and cars proceeding northward on the main track arrived at the point "B," the brakeman Holland opened the switch at that point, and it remained open until the accident and death of Davis occurred.

Taking the most favorable view of the evidence for appellee, the jury might have found that, after the switch was opened by Holland at "B," the engine and cars with the balance of the crew, including Davis, continued on the main track passing out at the switch "A," and back down to the depot, there "spotting" or leaving to be unloaded two cars that were attached to the engine and tender. In spotting these two cars other cars that were on the passing track in front of the depot were pushed down south on the passing track toward "C." After the two cars were spotted Davis cut the engine and tender loose, and got on the rear end of the tender. The engine then went north on the passing track beyond switch "A." Davis signaled the engineer to come back down the main line. He dropped off and opened the switch for the main line at switch point "A." When the engine and tender backing south passed switch "A," Davis closed the switch "A"; then got back on the southeast corner of the tender. "He sat down, and crossed his legs, with his arm in the handle on the tank." He signaled the engineer to back down the main track, which the engineer did at a speed of about 15 or 20 miles an hour. The engine and tender ran into the open switch at "B," and collided with the cars that were standing on the house track near "C," producing the injury that resulted in the death of Davis. From the point "A" down the main track "A, E, B," to "B" is 961 feet, and 600 feet of that distance the track was perfectly straight, and there was nothing at the time of the occurrence to obscure the vision for that distance between Davis on the tender and the open switch at "B." There was at switch "B" the ordinary switch stands, with the usual targets to show whether the switch was open or closed. The target showing that the switch "B" was open was a dull red color. It was turned that day at the time, so as to indicate that the switch was open. On a clear day such as that was the target indicating the open switch could have been seen from 150 to 200 feet away. The target indicating "safety," or when the switch was closed, was colored green. Davis was facing in the direction the tender was moving.

On behalf of appellant the engineer who was on the engine at the time of the accident testified in part as follows: "Mr. Davis was working that day as the `swing man,' and at that time as the `list man.' In the capacity of a list man a part of his work was to direct the movements of the engine. It was his place to direct us what movements to make. I looked to him for signals and directions for moving the engine. It was my duty to watch his signals and obey them. He was the one that signaled me to back down the main line. I know where the switch stand was there at that time. I did not know that the switch was open. I was depending upon Davis to keep the lookout down the track. The only ones on the engine were the fireman, Mr. Davis, and myself, and Mr. Davis was in the best position to keep the lookout. Mr. Davis was the only man on the engine at that time that had an unobstructed view of the track on both sides, and w...