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

• Decision Date: 10 May 1902
• Citation: 68 S.W. 488
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. THURMOND.
• Court: Arkansas Supreme Court

68 S.W. 488

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

Supreme Court of Arkansas.

May 10, 1902.

Appeal from circuit court, Pulaski county; Joseph W. Martin, Judge.

Action by Lizzie Thurmond, as administratrix of the estate of James Thurmond, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Dodge & Johnson, for appellant. P. C. Dooley, E. W. Kimball, and R. E. Wiley, for appellee.

BUNN, C. J.

Lizzie Thurmond, as the administratrix of the estate of her deceased husband, James Thurmond, brought this suit, for herself, as the widow, and James C. and Sue Ada Thurmond, the minor children of herself and deceased husband, against the St. Louis, Iron Mountain & Southern Railway Company, for damages in the negligent killing of her said husband, in the Second division of the Pulaski circuit court, laying the damages as follows, to wit: For herself in the sum of $6,000, for the children in the sum of $7,000, and for the estate in the sum of $3,000, aggregating the sum of $16,000, for which she prayed judgment. The defendant answered, denying all material allegations, and trial was had before a jury. Verdict and judgment for $1,050 for widow and children and $50 for the estate. From this judgment defendant in due form and in due time appealed to this court, assigning 11 separate and several grounds of error in the proceedings and rulings of the trial court.

The plaintiff testified that she was the widow of the deceased, James Thurmond, and that they had two minor children living, — the children named in the complaint; that her husband had been working for the railway company for five years as a "fire knocker," receiving $1.62½ per day wages; that he was a steady colored man, and supported his family; that she did not see the accident, and personally did not know where and how her husband was hurt. She only saw him after he was sent to the hospital, where he died. She testified that she was administratrix of the estate of her husband. Deceased was working as fire knocker at the time he was hurt; that is, that he was in what is called a "cinder pit," under an engine standing on the track running over the pit lengthwise, taking the cinders and ashes out of the ash pan of the standing engine, or was just entering the pit for the purpose of doing so, when his leg, which seems to have been on the rail of the track, was run over and crushed by the wheels of the engine, which had been put in motion by the approach and concussion of the engine No. 135 coming up at the time. The leg of the deceased was amputated, and from the effects of this hurt and the operation he died soon afterwards. A cinder pit, it appears, is an excavation in the ground, something like the width of the railroad track, or wider; and the one in this case was 75 feet long, with a decline at each end, so as to admit of the passage of engines. The pit was 18 or 22 inches deep in the ground, and the railway track above it is on posts or upright blocks resting on the bottom of the pit, and extending up about 12 or 18 inches above the surrounding ground, and the stringers and track are laid on these, so that the track is from 30 to 40 inches above the bottom of the pit, maybe less. The space above the track and between the wheels of an engine standing thereon, is the usual diameter of the wheels, substantially. The cinder-pit track was a continuation of a spur or side track of the railroad, which connected it with the main line of the road. At the time of the accident the engine No. 372 had been standing on the track until struck by engine No. 135...