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

• Decision Date: 11 March 1893
• Citation: 21 S.W. 886
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. ROBBINS.
• Court: Arkansas Supreme Court

21 S.W. 886

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

Supreme Court of Arkansas.

March 11, 1893.

Appeal from circuit court, White county; Grant Green, Jr., Judge.

Action by E. M. Robbins, administratrix, against the St. Louis, Iron Mountain & Southern Railway Company for damages for the death of plaintiff's intestate. From a judgment for plaintiff, defendant appeals. Reversed.

Dodge & Johnson, for appellant. House & Cantrell, for appellee.

HEMINGWAY, J.

The appellant relies upon four grounds to reverse the judgment, which are as follows: (1) That there is no proof of negligence on its part; (2) that, if any negligence is shown, it does not appear to have occasioned the injury; (3) that, if the proof showed that the injury was occasioned in part by the defendant's neglect, the deceased knew of the danger, and assumed the risk; (4) that the verdict is excessive. The following state of case might have been found from the evidence, and is sufficient to the determination of the three grounds first stated. The injury was done in the switch yards where the ties lay exposed above the ground, and the spaces between them were unfilled. At the immediate place of the injury, crooked ties had been put down, some with the bow up and some with it down, their exposure being greater and the track rougher and more dangerous there than elsewhere in the yard. If the space between the ties had been filled, the danger of making couplings would have been reduced, and in some other similar yards on defendant's road such spaces were filled. There were about two miles of track in this yard, and the deceased, being a brakeman upon a local freight train, had been accustomed to doing a brakeman's work in passing there for eight months. Upon this state of case we proceed to announce our conclusions upon the several grounds relied on.

1. The irregular placing of the ties, and the failure to fill the intervening spaces, is shown to have enhanced the danger of the deceased and others in like service when making couplings, and, as it was in a much-used switch yard, the defendant should have known of its existence, and of the increased danger resulting to the brakeman from it. There is no proof that the spaces might not have been filled, and the enhanced danger avoided, by the exercise of reasonable care, and as it appeared that such had been done in other of defendant's yards we cannot say that there was no proof that defendant was negligent in thus maintaining its track.

2. The deceased went upon the track where the ties were less exposed, and the fact that he passed safely along until he reached the place of their greatest exposure, in the absence of any other apparent cause, warranted the jury in finding that the condition of the track caused him to fall. The circumstances do not tend equally to two conclusions, and the rule announced in Smith v. Bank, 99 Mass. 605, does not apply.

3. If the track had been in the same condition where the injury occurred as in other parts of the yard, we think that knowledge of it should be charged to the deceased; and, if he were chargeable with such knowledge, plaintiff could not recover, since he is held to have assumed the risk arising from a known dangerous condition that had continued from the time of his employment. But as the injury occurred where the exposure of the ties was greater than in other places, and where the risk was correspondingly increased, we cannot say that the deceased knew of the extra hazard to which he was there exposed, or that he assumed the risk arising from it.

4. The proof as to the damage sustained by the widow and children was that the deceased was 29 years of age; that he earned as a brakeman $60 per month, of which he gave them from $40 to $45; and that he had never accumulated anything. In the course of his employment the deceased was much away from his home, and there is nothing in the proof or in the character of his employment to indicate that he was of pecuniary advantage to his family in any other way than contributing money to their support. The evidence discloses no probability that he would have increased his earnings or contributed from them a...