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

• Decision Date: 16 April 1906
• Citation: 95 S.W. 783
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BOYLES.
• Court: Arkansas Supreme Court

95 S.W. 783

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

Supreme Court of Arkansas.

April 16, 1906.

Appeal from Circuit Court, Franklin County; Jeptha H. Evans, Judge.

Action by John Boyles against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellee was in the employ of appellant as "cable man" in a crew that was engaged in construction work on appellant's roadbed. The crew used a construction train consisting of an engine, tender, and three cars, and on the day appellee was injured the crew was engaged in hauling dirt and unloading it. The train was on a side track, and was backing onto the main line at the rate of eight or ten miles an hour. The switch which connected the side track with the main line had not been thrown so as to let the cars out, and appellee, who was riding on one of the cars, seeing the condition of the switch, and believing that the cars were going to be derailed, sprang to the ground. He was seriously injured, having his ankle thrown partly out of place, and badly sprained. He brought suit against appellant, alleging, with more or less repetition, as the gist of his action, that "the conductor in charge of the train wrongfully and negligently allowed the engineer to start up and move said train and engine without having first adjusted and thrown said switch so as to connect the rails leading from the side track to the said main line." He prayed judgment in the sum of $2,000. The appellant denied all material allegations of the complaint, and set up as an affirmative defense contributory negligence. There was a jury trial, and a verdict and judgment for $500.

Lovic P. Miles and Oscar L. Miles, for appellant. Sam R. Chew, for appellee.

WOOD, J. (after stating the facts).

First. Appellant, in its brief, contends that evidence of a conversation between the conductor and the engineer before the train started out, in which the conductor asked the engineer "if he was not drunk," and the engineer's reply thereto, and of the appearance of the engineer, "that he seemed excited," was improper and prejudicial. The appellant does not abstract the evidence at all bearing upon the question of whether or not the conductor was negligent in allowing the engineer to start up and move the train and engine without first adjusting the switch so as to let the construction train on to the main line. This was the gravamen of the charge as to the negligence of the company. Without this, even if the testimony were irrelevant or incompetent, it would be impossible for us to say whether or not it was prejudicial. Because, if the uncontradicted proof should show that the appellant's conductor was negligent in the manner charged, it would be wholly immaterial whether the engineer was drunk or sober just before the train started to pull out. The objection therefore could not avail appellant on the abstract he makes, and for the further reason that there is no reference to the motion for new trial in appellant's abstract, without which it is impossible for us, without "exploring the transcript," to determine whether his exception to the court's ruling was preserved. Appellant's objection to this testimony, therefore, could not avail here. But appellee has not seen proper to object to appellant's abstract, and ask for an affirmance for defects therein. On the contrary, he has set out a full abstract of the testimony from his standpoint on the question of appellant's negligence. From this, it appears, quoting from the language of one of the witnesses, that "it was the duty of the conductor to look after the condition and position of the switches. It is the duty of the conductor to see that the switches are thrown and properly adjusted with the main line before starting out of the side track. The engineer has control of the fireman and brakeman around the engine pertaining to the company's property and safety of the train. The fireman is subject to the command of the engineer. The engineer has control of the head brakeman when he is on the engine. This flagman or head brakeman is compelled to obey the orders of the engineer." This testimony is undisputed, and appellant does not deny that a failure on the part of the conductor to perform that duty would be negligence. Conceding therefore, without deciding, that the testimony of what the conductor asked the engineer about his being drunk, and the appearance of the engineer was irrelevant and incompetent, it did not go to the question of the negligence of the conductor in failing to throw the switch, and could not have been prejudicial. If the proximate cause of the injury was the negligence of the conductor in failing to see that the switch was thrown before starting the train out of the side track, and this was conclusively established, then, it was wholly immaterial whether the engineer was drunk or sober, and the testimony could not have been prejudicial.

Second. The same may be said of the remarks of counsel for appellee in his opening statement to the jury which were as follows: "I have an idea that the whole crew was drunk and drinking. They had been to Van Buren the night before and it is reasonable to suppose that they laid in a...