St. Louis, I. M. & S. Ry. Co. v. McCain
| Decision Date | 27 January 1900 |
| Citation | 55 S.W. 165 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. McCAIN. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Pulaski county; Joseph W. Martin, Judge.
Action by Farrar L. McCain, as administrator of estate of Charles C. Epple, against the St. Louis, Iron Mountain & Southern Railway Company for the wrongful death of plaintiff's decedent. From a judgment for plaintiff, defendant appeals. Affirmed.
The complaint charged that on March 16, 1897, plaintiff's intestate was employed by the defendant in its yards in North Little Rock as switchman; that on the night of said date he was run over and killed while switching cars, by reason of the negligence and carelessness of defendant's employés in the handling of its trains, and the incompetency of its servants, and in violation of its rules, and in consequence of the incompetent and unskillful engineer in charge of the engine being used at the time; that the said Epple left two children, 6 and 10 years of age, surviving him; that he was 30 years of age, earning about $60 per month at the time; that his estate and next of kin were damaged in the sum of $25,000, for which plaintiff prayed judgment. The answer denied each and every allegation of the complaint, and, for its complete defense, set up that Charles C. Epple was guilty of negligence and carelessness amounting to recklessness in going upon the track between two cars, and in so acting as to be the direct and sole cause of his death, and that had he not, by his own negligence, contributed to the same, the accident would not have happened. After the jury had been impaneled, and the trial had commenced, the plaintiff asked leave to file an amendment to his amended complaint, in which he charged "that the foreman of defendant's switch crew, who were placing cars on said transfer track to be taken or hauled out on said Ft. Smith road, negligently, carelessly, and recklessly ordered the section of cars moved, which set said stationary cars in motion, to be kicked in, or kicked in on said transfer track, without any warning to plaintiff's intestate, Epple, and without taking any care or precaution to ascertain if any one was on the track, or to keep from setting in motion the stationary cars which ran over and killed the plaintiff's intestate, Epple; and by reason of such negligence and want of care on the part of such foreman the plaintiff's intestate was run over and mortally wounded, without any negligence on his part." To the filing of this amendment to the amended complaint defendant objected, as setting up a new cause of action, and as coming too late, and after the trial of the case had commenced. The court overruled the objections, and exceptions were properly saved by defendant. Defendant then answered said amendment to the amended complaint, denying each of its allegations, and charging that the said Epple at the time of the injury was engaged in the yards at Little Rock as a switchman, switching cars in said yards; that one of the hazards, dangers, and risks of said work was that of getting caught between cars while switching, and that said Epple assumed the risk at the time he entered into the employment of the company; that his death was an accident, without fault on the part of any of the employés of defendant, said accident growing out of the contributory negligence of the said Epple. Dr. J. W. Jenkins testified that Charles Epple, alias Culver, was brought to the Missouri Pacific Hospital on the night of March 16th; that he was cut open in the stride, and was very badly injured by the car wheels passing over him. He was in a dazed condition from the shock, and, although he lived about three hours, the shock was such that he did not suffer greatly on account of his injuries. John Curry testified: That he was a switchman working with the switching crew of which the deceased was a member. That his crew was moving cars from the transfer track, while a switch engine and another crew were putting cars on the transfer track for his crew to move into another part of the yard. That his crew, with whom was deceased, backed down into the transfer track, and then coupled up three cars. That he and deceased went across the track, between the cars, to the other track, to look for links and pins. Whenever switchmen want to get links, when they are not in the cars, as they generally are, they go and get them wherever they can find them. The track where the injury occurred was curved, and held about 34 cars. It was witness' and deceased's duty to couple the cars when they were backed down, and they were going to get the links and pins for this purpose, and it was while Epple was returning across the track, between the two cars, that the cars came together and caught him. It was somewhere about 9:30 o'clock at night, — after dark. On cross-examination witness stated: That the yard master that night was Con Curry, and had charge of both crews. These two crews were switching under the directions of the same night yard master, Con Curry. That his switch crew had pushed down on the van or transfer track for the purpose of moving cars. While the cars were standing there, he and deceased passed across the track between the two cars for the purpose of getting pins and links, and deceased had got his links and pins, he supposed, and while going back was caught between the two cars as they came together. Harry Nolan testified: That he was foreman of the switch crew in which John Curry and Epple were working. That Charles Compton was switch foreman of the other crew. Compton's crew were pushing cars on the van or transfer track for witness' crew to take and distribute in the yards; in other words, they were transferring the cars from one part of the yard to the other, — Compton's crew delivering the cars, and his (Nolan's) crew receiving them. The record shows that about 9:30 on the night of March 16, 1897, Charles C. Epple was in the employ of the Iron Mountain Railway Company as a switchman, engaged at work in the Baring Cross yards. He had sought employment from defendant, and was working under the assumed name of Charles E. Culver. As such he had signed his application, and as such he was...
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