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

• Citation: 197 S.W. 288
• Decision Date: 09 July 1917
• Docket Number: (Nos. 101, 112.)
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. STEEL.
• Court: Supreme Court of Arkansas

197 S.W. 288

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

(Nos. 101, 112.)

Supreme Court of Arkansas.

July 9, 1917.

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

Action by Sam Steel, special administrator of R. D. Steel, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Defendant's requested and refused instruction No. 17 is as follows:

(17) You are instructed that, even though you should find that Rhad Steel received an injury, and even though you should find that said injury was the result of negligence on the part of the defendant or some of its employés, and even though you should further find that because of said injury deceased was so weakened and lowered in vitality that he was more susceptible to disease and less able to resist it than he otherwise would have been, still you are instructed that, notwithstanding these facts, if you believe from the evidence that the deceased died of typhoid fever, then there can be no recovery for his death, and this is true even though you may believe from the evidence that his death would not have resulted but for his lowered vitality and weakened condition.

This is the second appeal in this case. The facts developed on the first trial are very elaborately stated in the case as reported in 119 Ark. 349, 178 S. W. 320, L. R. A. 1915F, 1114. For the purpose of this opinion they may be briefly restated as follows:

R. D. Steel was in the employ of the appellant as a car repairer. He was directed by McDonald, the foreman of the repair gang, to go under a car and repair it. Steel said something about whether or not they should have the flag put out, and the foreman told him to go ahead under there; that they were in a hurry, and he (McDonald) would watch out for and protect him. But the foreman did not observe the rule which required workmen while working under cars to put out a blue flag as a signal of danger. The rule is as follows:

"Examine personally scaffolding, tackle and all other appliances before trusting them. If your duties require you to go around, under or on cars protect yourself with blue signals."

It was shown that Steel was furnished with a work card upon which this rule was printed. While Steel was at work under the car an engine, with cars attached, backed up and shoved the cars under which he was working some two or three car lengths, moving them very slowly. About the time the cars stopped Steel came out from under the same, and the witness who saw him do so stated that he could not tell whether he was injured or scared, or both. Steel, at the time of and prior to this occurrence, was shown to have been a well man, and one exceedingly quick in action and unusually stout. After this occurrence he was unable to continue work, and the foreman offered to carry him home on the speeder. When he got home he was unable to walk, and crawled up the steps. He went to bed immediately, and called the company's doctor. The occurrence took place in October, 1912. There was a bruised place on his back and on the left side of his head, about his ear, from which he continued to suffer until the time of his death. He was not able to do anything after the occurrence. Before his alleged injury he was accustomed to horseback riding, but after that he never rode again. Although he was able to go about, he was never thereafter able to do any work. He finally took to his bed in June, 1913, and died on the 12th of August.

There was testimony on behalf of the appellant tending to show that the immediate cause of Steel's death was typhoid fever. But there was testimony on behalf of the appellee tending to prove that his death did not result from typhoid fever alone, and would not have resulted from that cause alone, but that his death was the result of the injuries he received at the hands of the employés of appellant while he was working under the car.

This suit was instituted by the appellee as the administrator of the estate of Steel to recover damages on account of the death of Steel, which the complaint alleged was caused through the negligence of appellant's foreman in failing to protect Steel and in permitting the engine and cars to be run upon the track and upon the car under which Steel was working. The answer denied the material allegations of the complaint, and averred that at the time of the alleged injury the appellant was engaged in interstate commerce, and that the car which was being repaired was a car that was being used in interstate commerce, the same being used in transporting dirt from a point near Bryant, in Saline county, to different points along the track of appellant, the same being a line of railroad extending from St. Louis, Mo., to Texarkana, Ark., and alleging that by reason of the above facts Steel, at the time of his injury, was employed in interstate commerce, and that therefore the cause of action was controlled by the federal Employers' Liability Act, approved April 22, 1908.

The jury returned a verdict assessing the damages accruing prior to the death of Steel at $1,000, and the damages on account of the death at $2,000. Judgment was entered in favor of the appellee, and this appeal is duly prosecuted. Other facts stated in the opinion.

E. B. Kinsworthy and W. G. Riddick, both of Little Rock, and W. R. Donham, of Benton, for appellant. Bratton & Bratton, of Little Rock, and J. S. Utley and D. M. Cloud, both of Benton, for appellee.

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

I. The appellant contends that the court should have directed a verdict in its favor on the issues of fact involved in the case, to wit, as to whether or not Steel was injured as alleged in the complaint, and, if so, whether or not these injuries resulted in his death and on the issues of negligence and contributory negligence and assumed risk. There was substantial evidence to sustain the verdict, which is conclusive so far as this court is concerned, and a discussion of the facts could serve no useful purpose as a precedent.

II. The next question for our consideration is whether or not the court correctly submitted the issues of fact in its instructions. On the issue of fact as to whether the death of Steel resulted proximately from the alleged injury or whether the proximate cause of his death was typhoid fever, the testimony was not the same on the last trial as on the first. On the last trial there was testimony from which the jury might have found that the proximate cause of the death of Steel was the injury that he received, and that but for this injury his death would not have resulted from the typhoid fever alone, although such fever contributed to and concurred in producing his death. The court instructed the jury as follows:

"Even if you should believe from the evidence that typhoid fever contributed to cause the death of deceased, yet if you further believe from the evidence that deceased received an injury as alleged, and that said injury was caused by the negligence of the defendant's agents and servants as alleged, and that said injury, together with typhoid fever, caused the death of deceased, and that but for said injury deceased would not have died, then your verdict should be for the plaintiff."

This instruction was correct, and was warranted by the new evidence adduced at the last trial, tending to prove, as we have seen, that Steel's death would not have been caused by the typhoid fever alone, but that his death was caused by the injury, to which the typhoid fever also contributed and concurred in producing. This court, in Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 98, 152 S. W. 995, 998 , quoted from Freeman v. Mercantile Accident Association, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753, defining proximate cause where another cause also contributed to the result, as follows:

"The law will not go farther back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause or causes beyond seeking the efficient, predominant cause, which, following it no farther than those consequences that might have been anticipated as not unlikely to result from it, had produced the effect."

This new testimony brings the case within the doctrine announced by this court in St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 301, 129 S. W. 78, as follows:

"Where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury, and this rule applies where one of the causes is the act of God. * * * The act of God which excuses must be not only the proximate cause, but the sole cause. And where the act of God is the cause of the injury, but the act of the party so mingles with it as to be also an efficient and co-operating cause, the party will be still responsible."

See, also, numerous other authorities there cited.

In Belt R. & Stockyards Co. v. McClain, 58 Ind. App. 171, 106 N. E. 742, it is held:

"Where two independent causes concur in producing an injury, the party at fault for one of the causes will be held liable if the injury would not have occurred without it."

It is unnecessary that the negligent act be the last or nearest cause, though it must be an essential cause. Waschow v. Kelly Coal Co., 245 Ill. 516, 92 N. E. 303. And in Brown v. West Riverside Coal Co., 143 Iowa, 662, 120 N. W. 732, 28 L. R. A. (N. S.) 1260, it is held:

"Where the negligence of a responsible person concurs with an act of God in producing an injury, such person is liable for the consequences, provided the injury would not have happened but for his failure to exercise ordinary care."

The court also instructed the jury that if they found from a preponderance of the...