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

• Decision Date: 15 February 1909
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. FREEMAN.
• Court: Arkansas Supreme Court

116 S.W. 678

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

Supreme Court of Arkansas.

February 15, 1909.

Appeal from Circuit Court, Marion County; B. B. Hudgins, Judge.

Action by Louisa Freeman, as administratrix of J. C. Freeman, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed on condition that plaintiff enter a remittitur; otherwise reversed and remanded.

T. M. Mehaffy and E. B. Kinsworthy, for appellant. Crump, Mitchell & Trimble and Jones & Seawell-Hamlin & Seawell, for appellee.

McCULLOCH, C. J.

J. C. Freeman was employed by the defendant, St. Louis, Iron Mountain & Southern Railway Company, as an engineer, and was killed in a wreck of his train on December 8, 1907. His widow, as administratrix of the estate, sues to recover damages for the benefit of the next of kin on account of his death. She recovered judgment for $20,000 in the circuit court of Boone county, and defendant appeals to this court.

The wreck occurred at a spur track near the station of Myrtle, Ark., in Boone county, about 10 o'clock at night. The train was north-bound, and was derailed at the switch or spur. The contention on the part of the plaintiff is that there was a defect in the point of the switch rail which caused the engine to "split" the switch and leave the rails. On the other hand, it is contended in behalf of the defendant that the switch was thrown by some one for whom the company was not responsible, and that the engine turned in on the spur and was derailed and turned over because of a weak place in the spur track. Negligence of the company is set forth in the complaint on account of having permitted the switch point or rail to become defective so that it allowed a space of from one-fourth to one-half of an inch between it and the main rail, and also to become worn or crumbled off at the point; also that the flange on one of the drive wheels of the engine had become worn, and that by reason of this negligence in one or both of the particulars named the wheels of the engine mounted the switch rail or passed through the crevice between the two rails so as to cause the engine to split the switch. The case was submitted to the jury on these questions of alleged negligence, and the principal contention of the defendant here is that the evidence was insufficient to support the verdict. It is contended very earnestly that certain physical facts shown to be in existence were inconsistent with the plaintiff's theory of the case, and that the verdict should be set aside on that account. After a careful consideration of the evidence, we are of the opinion that there was sufficient evidence to warrant the finding of negligence in the particulars named.

The evidence tended to show, from the testimony of several witnesses, that for several months before the accident, and continuing down to within a few days of it, the point of the switch rail was in the condition contended for by plaintiff; that is to say, it was worn and crumbled off at the point, so that there was a space of from a quarter to a half-inch between it and the main rail when the switch was closed. The evidence also tended to show that the flange on one of the drive wheels of the engine was worn so that it was only about one inch in thickness. The conclusion is warranted, from the conditions which were found to exist immediately after the wreck, that the engine and train did not pass into the spur, but that it became derailed, or "split the switch," as the witnesses term it, and was turned over. Immediately after the wreck occurred the engine was found to be lying on its side between the rails of the spur track. There was evidence tending to show that the engine, after being derailed, went for some distance along the main track and then plowed its way between the two tracks and was turned over, and remained on the spur track. These conditions showed that the switch was not open as contended for by the defendant, and that the engine did not pass into the spur and become derailed by reason of the weak foundation of the spur track. There are, on the other hand, certain conditions, found to exist immediately afterwards, which tended to show that it was improbable that the switch was closed at the time. But we cannot say that these circumstances and conditions were conclusive of that fact. The engine was turned over, and several of the cars were wrecked; and, while all the conditions found are not explicable on the theory of the plaintiff's evidence that the engine and cars split the switch, we cannot say that they are so inconsistent with the plaintiff's theory as to render the evidence insufficient to justify the finding of the jury. Upon the whole, we are convinced that the state of the evidence was such that the...