St. Louis, I. M. & S. R. Co. v. Brogan

• Decision Date: 28 October 1912
• Citation: 151 S.W. 699
• Parties: ST. LOUIS, I. M. & S. R. CO. v. BROGAN.
• Court: Arkansas Supreme Court

151 S.W. 699

ST. LOUIS, I. M. & S. R. CO. v. BROGAN.

Supreme Court of Arkansas.

October 28, 1912.

Appeal from Circuit Court, Hot Springs County; W. H. Evans, Judge.

Action by F. T. Brogan against the St. Louis, Iron Mountain & Southern Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

The instruction on the measure of damages was as follows:

Instruction No. 5: "You are instructed that if you find for the plaintiff you will assess his damages at such a sum of money as will be a fair and reasonable compensation to him for the injuries he has received as a result of the alleged accident; and in arriving at the amount of said sum of money you will take into consideration, as you find from the evidence, the nature and extent of his injuries, whether temporary or permanent in character, results reasonably certain to follow, any disfigurement of his person as a result of his injuries, the bodily pain and mental suffering he has endured, and that he is reasonably certain from the evidence to hereafter endure, as a result of his physical injuries, the loss of earnings from his labor since he received his injuries, and the loss of earnings in the future of his life by virtue of his decreased capacity to earn money because of his injured condition, his age and reasonable expectancy of years of life, his vocation and earning capacity prior to his injury, with his probable chance of being promoted to a position of increased remuneration of his services had he not been injured, his condition of physical strength and health prior to his injuries, and the expenses to which he is subjected as a result of his injured condition."

Appellee was in the employ of the appellant as a locomotive fireman. On October 17, 1911, he was engaged in firing on a locomotive engine in the Argenta yards while switching freight cars. He had never before worked in that yard as a switch engine fireman, nor had he ever worked as a switch engine fireman on any other road. He was not familiar with the tracks in the Argenta yards. He had been firing on the main line of the Iron Mountain until he was called on the night of October 17th to fire on the switch engine in the Argenta yards. He went on duty that night about 9 o'clock; had to keep firing right along all the time to keep steam and water in the engine. He had no time to look out; had put a fire in the engine, and got up in the seat, and his eyes were blinded from the fire and heat. Five cars were attached to the head of the engine. They were moving towards the north. He did not know what kind of cars were coupled in front of the engine, other than that there was a box car next to the engine. That car was as high as the top of the headlight on the engine. The distance between the end of the box car and the headlight on the engine was about two feet. The box car, appellee says, caused the headlight to reflect back in his eyes. He could not have seen the car standing out at the side and ahead of the engine because of the light reflecting in his eyes. The signals for working purposes were given on the engineer's side. As his engine was propelling, at a slow speed, the cars ahead of it along the lead track, the cab of the engine collided with a car standing on the side track leading out from the lead track on appellee's side of the engine. The cars ahead of the engine on the lead track had passed the car standing on the side track, but the cab of the engine cornered with it. When appellee heard the crash, he endeavored to get out through the front window; but his leg was caught, and he sustained serious injuries, which will be hereinafter described.

Appellee did not know that the box car with which the engine collided was so close to the lead track on which the engine was moving. This car had been dropped into the side track from the lead track, and left there by the engine on which the appellee was at work. After the box car had been dropped in on the side track from the lead track, the engine had pulled back onto the lead track with the remaining five cars of the string, and as these cars were pushed forward by the end of the side track the collision occurred by which the appellee was injured. The foreman of the switch crew directed the movement of the switch engine and the location of the cars. He had placed the car in the position where it was at the time it struck the engine. He states that the appellant company had rules covering the placing of cars in the clear on side tracks. The rule required that "conductors must see that brakes are set on cars they leave on sidings, and when the siding is on a grade they must, when practicable, couple all the cars together, and, in addition to setting the brakes, the wheels must be blocked and safety switches properly adjusted. When not in use, safety switches must be left open. In switching, trainmen must know that brakes are in good order before cutting off cars."

The rule refers to conductors, and in switchyards the yard foreman is the same as the conductor. There was a downgrade there to the east from the south end. The grade there was such as to cause the cars to go away from the lead, and the engine was headed east when they kicked the car in on the track where it stood when the collision occurred. The foreman stated that according to his judgment the rules of the company were complied with in placing the cars there that night. The downgrade would be to prevent the car coming out, if moving. The brake would not have to be set on that car. If the brakes were set on the cars below, they would hold that car. He went down and got on top of the rail, which was the custom and the rule, and stood on top of the rail and held his hand out, and ordinarily, if it cleared his fingers, holding his arm out straight, as he did that night, it would clear a car or an engine. He adopted the usual method that they had adopted and been using for 27 years to see if it would pass, and in his judgment he thought it would. The brakes were not set on the box car that collided with the engine, nor was any block placed under the wheel on the end of the car towards the lead on which the engine was moving. He stated that it was not necessary. He kicked the car in on the track, which consisted in giving a cut of cars a start, and then cutting the car loose from the rest, and it rolls into the track. On that occasion he kicked the car in, and walked up the lead, and stood on the rail, and held his hand out, taking the precaution above mentioned. The witness testified that the box car would "have no reflection on a person's eyes looking ahead. If you were looking directly at the light alone, it would; but, where you are looking at the reflection, it does not."

Appellee brought this suit on November 6, 1911, and in his complaint he alleged that "the cab in which he was working was struck by a car that had been negligently left standing on the side switch north of the one in which plaintiff's engine was turning, and the left side of the cab was crushed in upon the plaintiff and seriously injured him"; that "said accident and injury was caused by the negligence of the defendant and its servants in placing and leaving on the side track, so near the lead switch, the car which struck the locomotive on which plaintiff was at work, and in negligently directing the train on which plaintiff was working to move in to the side switch." The defendant answered, denying the material allegations of the complaint, and setting up that the plaintiff was injured by his own negligence in failing to keep a lookout, which it was his duty to do, and also setting up that plaintiff "was as well informed of the dangers from cars being left too close as any of defendant's other servants, and assumed the risk of such injury as might occur thereby."

The above are substantially the facts on the issues of negligence, contributory negligence, and assumed risk. The court granted and refused requests for instructions, to which appellant duly excepted, and which we will comment upon in the opinion. The jury returned a verdict for $25,000, judgment was entered for that sum in favor of the appellee, and this appeal has been duly prosecuted. Other facts are stated in opinion.

E. B. Kinsworthy, R. E. Wiley, and W. G. Riddick, all of Little Rock, and W. V. Tompkins, of Prescott, for appellant. Robertson & De Mers, of Little Rock, for appellee.

WOOD, J. (after stating the facts as above).

The appellant contends that the verdict was excessive, caused "partially at least by the exploitation" in the testimony of a "disagreement amongst the doctors who treated appellee at the hospital and those treating him after he left the hospital as to whether his injuries were properly treated at the hospital, and as to the present and future results of his injuries as affected by that treatment." The testimony of physicians on behalf of appellee, one of whom had treated him for 12 days preceding the trial, tended to show that when they examined appellee his broken leg was unhealed; that, notwithstanding the efforts of the physicians at the hospital to save appellee's foot from amputation, same was now necessary, in order to save appellee's life; and that by reason of a failure to operate at first, and on account of the prolonged treatment in trying to save the limb, the bone had decayed, and the limb had become so infected that it would have to be amputated above the knee, whereas, in their opinion, if the limb had been amputated soon after the injury occurred, it would have been only necessary to amputate between the ankle and the knee. In describing appellee's injuries, the testimony of physicians in his behalf tended to show that he had a broken shoulder, the bones of which, on account of the long lapse of time since the injury, could not be knit together, because of the decayed bone at the fractured ends. The testimony of the physicians and surgeons on behalf of the appellant, who treated ...