St. Louis, I. M. & S. Ry. Co. v. Hesterly
| Decision Date | 27 February 1911 |
| Citation | 135 S.W. 874 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. HESTERLY. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.
Action by E. L. Hesterly, administrator, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed, if plaintiff files remittitur; otherwise reversed and remanded for new trial.
This suit was brought by the administrator of the estate of Wm. B. Hesterly, deceased, to recover damages for the benefit of the estate and the next of kin on account of an injury to deceased which resulted in his death about five hours afterwards.
The complaint was in two paragraphs. It alleged that the defendant was operating a line of railroad as a common carrier of freight and passengers in the state of Oklahoma, and that deceased was a brakeman on defendant's said line in Oklahoma, and that, while he was engaged at Wagoner assisting in switching certain cars onto a side track, it was necessary for him to pass over them in order to set the brakes; that while doing so the bottom fell from a car on which he was walking, the deceased fell through, and four cars ran over his lower limbs, severing them from his body; that the injury was caused by the negligence of the defendant in moving a dump bottom coal car in the train at a time when it knew that the fastenings of the bottom were unsafe, likely to give way and dump the contents of the car upon the ground, and that the brakemen on the train in the discharge of their duties would be required to pass over the car, and thus be subject to the hazard of injury if the bottom fell; that deceased was 22 years old, had an earning capacity of $100 per month, and left his father and mother as his next of kin; that he would probably have contributed to them during his life expectancy $25 per month. Damages in the sum of $5,000 are asked for their benefit. The second paragraph sets out the same allegations as to the employment of deceased and his injury, and, in addition, that deceased was taken from under the cars and left lying on the ground without proper medical attention for a space of more than three hours; that during that time he suffered intense physical pain and mental distress as the result of his injuries; that such pain was continuous from the time that he fell through the car and was injured until about 5 o'clock the next morning, when he died. Damages on this account are asked for the benefit of the estate.
The answer denied all the material allegations of the complaint, and further alleged that, if deceased was injured, his injury resulted from his own negligence in failing to exercise proper care to protect himself against injury, and that a recovery was barred by his contributory negligence; and, further, that his injury resulted from a risk which he assumed, and that, on account of his assumption of risk, no recovery could be had.
The testimony tended to show: That deceased was rear brakeman on appellant's freight train, between Van Buren, Ark., and Coffeyville, Kan. That he left Van Buren on the train about 4 or 5 o'clock in the afternoon of August 25, 1909, reaching Wagoner, Okl., about 12:15 or 12:20 at night. That some six or eight cars were to be set out there. That the engineer switching the cars stopped the train at the "passing track switch," letting the cars go down the passing track, having some to set on the Y and some to set on the rip track. That the switch on which the cars were to be placed was opened by the head brakeman on the train. That it was the deceased's duty to ride the cars in, and that he did ride them in, and they were expected to stop just in the clear of the train. The engine was stopped in the clear of the cars, and they passed it going two or three miles an hour. Deceased was at the time on the top of a box car, near the engine. The cars went about 15 car lengths further down the switch track than the engineer expected them to, and he called to the head brakeman, who threw the switch, and he backed up the main track and started to head in on the passing track to catch the cars. As he went down on the passing track, the fireman said: "There lies the brakeman." The head brakeman was on the right-hand side of the pilot and gave the signal to stop, and the engine was stopped. The head brakeman, Hall, came back to the gangway and said: He was told to see if he could do anything for him, and he got a torch and went to him. When he got there, deceased told him how he was hurt. He told him to look on the first iron coal car and find a door open. He said, "I fell through that." The engine had moved eight or ten car lengths on the passing track when the fireman discovered deceased. The fireman and the brakeman, Hall, went together. When deceased saw witness (the engineer), he called him. He was then lying between the passing track and the rip track, his body just outside the rail toward the rip track, with one leg cut off, and the other one mashed. He talked of his mother and father, some one by the name of Uncle Will, and about a young lady at Ft. Smith to whom he said he was engaged to be married, and left messages for them. The injury occurred between 12:15 and 12:20. A doctor was telephoned for, but it was an hour or an hour and a half before he came. Deceased was conscious all the time, and appeared to be in great pain, complained about his legs hurting him, and wanted them to straighten them out. He was placed on a cushion out of the caboose in the first section of the freight train, and remained there from an hour and 30 minutes to an hour and 45 minutes. It was something like two hours before they moved him. He was first moved to the waiting room at the depot, and then into the caboose. That was between 3 and 4 o'clock in the morning. They started with him to Van Buren, and when they had gotten about 45 miles he died, about 5:30 o'clock. One of the doctors was on the train with him, returning.
It was the duty of deceased to cut off the engine, let the cars loose, get on top of them, ride them in, apply the brakes, and stop them. This he was doing. It was found after the injury that on the first three cars going north — a box car and two coal cars loaded with cinders — the brakes were set. The box car was the one next to the engine, and the brakes on it were set, as were the brakes on the two cinder cars next to it. The third cinder car was the one with the hopper door down and the brakes on it were not set. The brake was at the far end of the car from the box car on which deceased rode in to the switch. An examination disclosed that one of the hopper doors on this cinder car had fallen down out of place one end of the chain attached to the door, and the other end loose from the iron that should have held it up. The door swung down and left an opening. One of the chains to the door that was down was entirely gone and the other was attached to the door, but its attachment to the shaft which held it in place was broken. The chain did not appear to be broken, but the bolt that was connected with it and goes through the edge of the door and fastens it was, and the car inspector that examined the car early the next morning could not tell how long it had been broken. No rope or wire was found attached to that door. The bolts on both doors were broken. One door was down, the other in place and fastened with a wire instead of a bolt. It was a Missouri Pacific car made of iron. There are four hoppers in one of these cars, two in each end of it. A center rib about a foot wide flush with the floor runs through the whole length of the car, and the hoppers are at either end across this rib from each other. They are slightly below the level of the floor of which they form a part when closed, each making a hollow place from eight inches to a foot deep, a kind of pocket in the floor. The hoppers are about four feet square, and each has two doors that swing up from the bottom of the car crosswise, and from the corner there is a chain that goes to a shaft which runs across the body of the car. The shaft is wound from the outside with a wrench, and winding that shaft draws the doors to a closed position, when they are latched on the inside with a ratchet. The cars were loaded with cinders to within three or four inches of the top, and were about four feet deep, and the fastenings of the doors could not be observed or discovered while the car was loaded. No cinders were found where deceased fell, nor any that were apparently spilled on the ties or track. There were 36 cars in the train when it left Van Buren. These four loaded with cinders had come up from Argenta. One of the brakemen, after leaving Van Buren, at the third station out from Wagoner, where the train had been side-tracked for another train to pass, sat down on the main track opposite his train, and observed the running gear as it pulled out of the side track, and saw nothing wrong — no drop bottoms out of place. The car through which deceased fell was the fourth car from the engine when in the train, and 31 cars from the caboose.
One witness stated that he inspected this car after the injury, about 1:30 o'clock; noticed the drop door open and cinders had caved through, caved entirely out on one side, and left a space on the other side; saw on the top of the cinders where it looked like a man had stepped over and about the length of his foot had caved in beyond the length of this circle where it had caved in. The drop was not there. There were no fastenings to the drop door that was down. Saw no wire or piece of rope about those fastenings, and no chain. The lever was there, but there was nothing to show where the chain had been severed from the door. It was gone. Cinders had leaked out through this hopper door, and about two feet on the other side, just the same as if the car was loaded,...
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