St. Louis, I. M. & S. Ry. Co. v. Neal
| Citation | 98 S.W. 958 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. NEAL. |
| Decision Date | 15 October 1906 |
| Court | Supreme Court of Arkansas |
Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.
Action by Jonathan Neal, as administrator, etc., of the estate of George W. Taylor, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Oscar L. Miles, for appellant. Chew & Fitzhugh and W. H. Neal, for appellee.
Mr. Justice BATTLE prepared the statement of facts and opinion of the court, and his opinion reflected, at the time it was prepared, the views of a majority of the court.
In all matters except the construction of instruction No. 1 and the refusal to give instructions 28 and 29 asked by appellant, it expresses the unanimous opinion of the court upon the questions therein discussed, and his statement of facts and opinion, filed herein as a dissenting opinion, is adopted by the court except as to the instructions referred to.
Mr. Justice McCULLOCH and I take this view of the instructions: The first paragraph of instruction No. 1 states the rule announced in the former opinion of this case with clearness. Following this correct statement is the second paragraph putting the same proposition in another way, and in that statement there is an error, but not a misleading one. In further explanation the court said: "Now, the law required that the two cars between which Taylor lost his life should be, when unloaded, of the equal and uniform height from the level of the face of the rails to the center of the drawbars of 34½ inches, and when loaded to the full capacity should be of the uniform height of 31½ inches." If this had read of not less than 31½ inches, or if this explanatory paragraph had been omitted, there could have been no doubt whatever of the entire correctness of the instruction. But, read in connection with the foregoing paragraph, which so plainly and clearly stated the rule, it is difficult to see where this could have misled the jury or been prejudicial. Especially is this the case as the subsequent instructions proceeded on the correct theory that it was the excessive difference which was actionable.
The 28th and 29th instructions requested by appellant simply repeated what the court told the jury in this instruction, and it cannot be error to refuse what was already given. If these instructions had cleared up the inaccuracy in the second paragraph of instruction No. 1, then it would have been error to have refused them, but they merely repeated the substance of the first and third paragraphs of this instruction, and these paragraphs needed no repetition or explanation, as they are complete of themselves.
Mr. Justice WOOD and Mr. Justice RIDDICK do not, in all things, agree with the foregoing opinion, but they do concur in the judgment. Therefore a majority of the court is in favor of affirmance, and the judgment stands affirmed.
The St. Louis, Iron Mountain & Southern Railway Company owned and operated a railway, which was engaged in interstate commerce, and extended from the city of Van Buren, in this state, through the Indian Territory, to the city of Coffeyville, in the state of Kansas. The town of Sallisaw, in the Indian Territory, is on its line of railway. George W. Taylor was employed by it as a brakeman on one of its freight trains. On the 18th of January, 1899, this train left Van Buren for Coffeyville. It had two cars to be left at Sallisaw. When it reached that place the train was uncoupled for the purpose of leaving these cars on the side track, and the engine, with several cars attached, moved forward, leaving the caboose and other cars standing on the main line. The two cars that were to be left were placed on the side track, and the cars attached to the engine were pushed or kicked back towards the caboose and cars left on the main line. The front car of those pushed or kicked back on the main track, it being first in line in the direction they were moving, was equipped with "the old-fashioned link and pin drawbar." It was moved back for the purpose of attaching it to the cars left with the caboose. The car to which it was to be coupled was equipped with an automatic coupler, but its drawhead was so made "that the link and pin coupler could be used when it was necessary to couple to a car having that coupling." As the cars to be coupled were coming together Taylor stepped between them, and inserted a link in the drawhead of the automatic coupler. The cars approaching came with great force, and when they were near the car to which they were to be linked he endeavored to get from between them, but was caught and killed.
Jonathan Neal was appointed administrator of the estate of the deceased, qualified as such, and brought this action against the railway company for the damages to his widow and next of kin caused by his death, alleging that it was the result of the negligence of the defendant in failing to have the drawbars on the cars that he attempted to couple "of even, uniform, or standard height, as required by the laws of Congress." The defendant answered and denied that its negligence contributed to the death of plaintiff's intestate, and alleged that it was caused by his own negligence.
The issues in the action were tried by a jury in the Crawford circuit court; the defendant recovered a judgment; plaintiff appealed to this court; the judgment was reversed, and the cause was remanded for a new trial. Neal v. St. Louis, Iron Mountain & Southern Railway Co., 71 Ark. 445, 78 S. W. 220.
Upon a second trial in the circuit court the plaintiff recovered a judgment for $14,000, and the defendant appealed.
The law of Congress on which this action is based is section 5 of an act of Congress entitled "An act to promote the safety of employees and travelers upon railroad by compelling common carriers in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving-wheel brakes, and for other purposes," approved March 2, 1893, which is as follows:
Within the time designated by the act the American Railway Association filed with the Interstate Commerce Commission the certificate of their designation, which, in part, is as follows: "Resolved, that the standard height of drawbars for freight cars, measured perpendicular from the level of the tops of the rails to the center of drawbars, for standard gauge railroads in the United States, shall be thirty-four and one-half inches and the maximum variation from such standard height to be allowed between the drawbars of empty and loaded cars shall be three inches."
In the second trial Earl Witt, a brakeman, testified that he saw the cars the deceased attempted to couple, after the accident, and that the automatic coupler appeared to be about three or four inches lower than the other, and that to determine this difference he made no close inspection or measurement. Charles Lattin, another brakeman, testified that he examined them and one appeared to be 1, 1½, or 2 inches higher than the other, and one 2 inches thicker than the other. He says: Again he says: He testified that one car was loaded to its full capacity and that the other had a light load. W. H. McPherson and M. D. Sanders, car inspectors, testified that they examined the cars, a very short time after the accident, while they were standing on the track, and measured the height of the drawbar in each car, at the ends where the same came together in the collision, from the centers of the drawbars to the top of the rail, and found that the height of one was 32½ inches, and of the other 33½ inches, a difference of one inch.
The evidence tended to show that Taylor attempted to couple the cars, and, failing to do so, to get from between them before they collided, and was caught and killed. Witnesses present testified that the moving car was traveling at a speed they variously estimate from three to eight miles an hour.
Defendant offered to prove by many witnesses who saw Taylor going between the cars to make the coupling that they impulsively cried out when they saw him, and made expressions like these, "Watch that man, he will be killed if he goes in there;" "Those...
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