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

• Decision Date: 05 April 1915
• Docket Number: (No. 291.)
• Citation: 175 S.W. 1177
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. COKE.
• Court: Arkansas Supreme Court

Page 1177

175 S.W. 1177

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

(No. 291.)

Supreme Court of Arkansas.

April 5, 1915.

Appeal from Circuit Court, Desha County; Antonio B. Grace, Judge.

Action by Allen Coke against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Given instruction No. 6 and defendant's refused instruction No. 17 were as follows:

"6. When a man enters the service of another, he is deemed in law to have assumed all the risks of injury which are ordinarily incident to the employment in which he is engaged; and if he is injured by an accident which is ordinarily incident, and liable to occur in such service, then the master is not liable. But such servant does not assume the risk of any injury which may occur from the negligence of the master or of his fellow servants."

"17. You are instructed that so-called expert or opinion testimony is permissible under the rules of law, but is of the lowest and most uncertain and unsatisfactory character, and should be received and considered by the jury with the highest degree of caution. It is your duty to carefully consider their statements as to the method and means of obtaining the information on which they arrive at their opinion, and you should only give credence to their opinion, if you consider it at all, in proportion to the thoroughness or uncertainty of the information on which they base it. You are further instructed that you are not bound by their opinion at all, further than it may coincide with your own judgment of the matters about which they give opinion, and that it would be your duty to reject all such testimony as does not agree with your own judgment, or as may appear to you not to have been formed from correct information of the best character obtainable. You are further instructed that in so far as the opinion of the doctors in this case is formed from a history of the case as given them by the plaintiff, you should not allow it to influence your own judgment in considering the facts as given you by the plaintiff himself."

Appellee sued appellant for personal injuries, alleging that appellant maintained its railroad track upon a bridge constructed over Lost Chain bayou; that the bridge was constructed of wood and timbers, with wooden bents about 14 feet apart, placed on mud sills which were placed on the surface of the ground below water, which was about 2 or 3 feet deep; that the bridge was improperly constructed, the bents and sills not being properly braced for the safe running of trains and locomotives thereon; that by reason of such improper construction it was of insufficient strength; that the rails, especially at the west end, were old, defective, and insufficient; that they were not of sufficient weight, and were insecurely fastened and braced; that the ties were unsound; that the defective condition of the bridge was well known to the appellant; that on March 20, 1914, appellee was in the employ of the appellant as conductor, and was in charge of its train; that the train consisted of about 20 cars, together with the caboose and engine; that the cars were loaded with gravel and ballast; that while the train was passing over the bridge above mentioned at ordinary speed, a defective rail broke and the bridge collapsed, causing the train to fall a distance of 12 or 15 feet; that the appellee was in the caboose at the time, performing his duties as conductor, and was thrown to the floor and received serious and permanent injuries which he described. The prayer was for damages in the sum of $35,000.

Appellant answered, denying specifically the allegations of negligence alleged in the complaint and the allegations as to the injuries and resulting damages, and set up that the plaintiff assumed the risk. The testimony on behalf of the appellee tended to show that on March 26, 1914, the appellee was conductor on a train such as described in his complaint, and that while passing over the bridge over what is known as Lost Chain bayou, the bridge collapsed, precipitating the caboose, with other cars, into the bottom of the bayou, and causing the injuries of which the appellee complains. The bridge was constructed of heavy pine timber, and the track laid on top of this bridge timber. The bridge did not have any cross-braces lengthwise with the bridge from bent to bent. It would not be as strong without these lengthwise braces as with them. The bridge was built three or four years before the accident of March 26, 1914. One witness, who got there within an hour after the bridge fell, stated as follows:

"I noticed the broken rail; it looked like it had been an old, rusty break along the side and underneath the rail, it did not extend to the top of the rail."

This witness was shown Exhibit C and asked "if that is the way a railroad bridge of this kind should be constructed," and answered, "Yes; that picture shows that the braces run lengthwise from bent to bent." Witness stated that it had been about 25 years since he worked as a bridge carpenter. At the time of giving his testimony, he was a day laborer. Another witness on behalf of the appellee testified that he was a civil engineer, and had seen the appellant's bridge at Lost Chain bayou several times. Witness was on the bridge about two months before it fell. He was about halfway across when he saw a gravel train coming. He got on the end of a cap while the train passed. The bridge shook so it scared witness, and he started to jump off, but the water kept him from it. Witness, after the accident, noticed a broken rail, but did not examine it closely. It was not cracked or anything, but just a fresh break. The appellee testified that he was conductor on the train, which at the time of the accident was running about 12 miles an hour. He was sitting at the end of the caboose, and all at once was thrown "like dynamite and landed out in the middle of the floor, about 12 or 15 feet, on his right hip." It knocked the breath out of him for quite a time. After about six hours, a caboose and engine came and took plaintiff home to McGehee. Appellee then tells about his being sent to St. Vincent's Infirmary at Little Rock, and about his treatment there, and details the nature of his injuries and sufferings, which will be referred to in the opinion. The appellant reserved exceptions to certain rulings of the court in the admission of testimony and in refusing certain of its prayers for instructions, which we will note in connection with the other assignments of error in the opinion. The jury returned a verdict in favor of the appellee in the sum of $25,000, and this appeal seeks to reverse the judgment entered in favor of the appellee for that sum.

E. B. Kinsworthy and T. D. Crawford, both of Little Rock, and J. C. Knox, of Monticello, for appellant. Hoeppner & Young, of Little Rock, for appellee.

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

1. Appellee's complaint contains the following allegations as to his injuries:

That "on being thrown to the floor, as aforesaid, plaintiff sustained serious and painful injuries to his right hip, legs, arms, head, body, spine, spinal cord and dislocation of one of his vertebræ, resulting in a curvature, and as a consequence the nerves, muscles, and tissues in the region of such dislocation are permanently injured." That "plaintiff also sustained severe and painful injuries to his kidneys, bladder, and entire nervous system, and said injuries are permanent and lasting." That "during all of this time, plaintiff has suffered great and excruciating pain and will continue to do so throughout his life."

Appellee testified that by reason of his injuries he had lost control of his bowels and bladder and was rendered impotent.

Dr. L. L. Marshall, a witness for appellee, testified that he was a physician and surgeon and had treated the appellee for the injuries he sustained since about the 2d or 3d of June, 1914. He stated that, by reason of the displacement of the nerves caused by the dislocation of one of the vertebræ, appellee had lost control of his bladder and bowels and genital organs. He described minutely the human vertebræ, together with the ligaments and muscles which hold them together, and the effect that the tearing of these muscles and the nerve pressure in a certain region of the back, which he pointed out, would have on the organs lying in the pelvic region, or lower cavity of the body. After minutely describing the anatomy of the human back, his testimony proceeded as follows:

"It would seem from his general condition that the sacral plexus of nerves is involved directly in front of this backbone or pudic nerve, a great and small sciatic nerve and its branches which control the lower limbs, the perineal nerves. In each one of these backbones, there is a hole on each side where the nerves from the cord come through, and where they come through in this fifth lumbar vertebra and from the dorsal vertebra, they go to form a plexus — the nerves coming together form a network. Off this network of nerves come the different nerves that go down to the legs and to the genital organs and into the rectum, and these nerves that come off this plexus subdivide and branch out like the branches of the trees, some governing some certain muscles and others other muscles."

The cross-examination proceeded as follows:

"Q. Do the nerves affecting the different parts of the body all come from the same vertebra? A. Oh, no. Q. Which vertebra, for instance, would those nerves come from that affect the rectum or bowel movement? A. This plexus is formed by the nerves that come out of the dorsal vertebra. Q. Which one is the dorsal vertebra? A. There are seven cervical and twelve dorsal. The first dorsal would be the eighth vertebra, and they give out nerves which join all the way down — and five of the lumbar vertebra which follow it — and nerves come through each of the lumbar vertebra and these...