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

• Citation: 171 S.W. 115
• Decision Date: 19 October 1914
• Docket Number: (No. 177.)
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. McMICHAEL.
• Court: Supreme Court of Arkansas

171 S.W. 115

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

(No. 177.)

Supreme Court of Arkansas.

October 19, 1914.

Appeal from Circuit Court, Independence County; R. E. Jeffery, Judge.

Action by J. A. McMichael against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Appellee sued the appellant for personal injuries. He alleged, in part, as follows: That on the 18th day of March, 1913, he was at George's Spur, a station on defendant's railroad, for the purpose of boarding one of defendant's trains, due at that station near 12 o'clock, noon, going east, and that defendant's servants and employés operating said train ran same over him, cutting off his legs below the knees, and otherwise injuring and damaging him, by reason whereof he was permanently disabled, disfigured, and injured; that he was caused to suffer great mental and physical pain and loss of time, had been compelled to hire physicians and surgeons and buy medicines, and will be compelled in the future to suffer mental and physical pain and loss of time, hire physicians and surgeons, and buy medicines, all to his damage in the sum of $75,000; that the plaintiff's injuries and damages were caused by the carelessness and negligence of the defendant's servants and employés operating the train aforesaid, in their failure to keep a constant lookout for persons upon the track, or to avoid injuring him after discovering his dangerous position; that if such lookout had been kept they could have discovered plaintiff's peril, and could have prevented injuring him by the exercise of ordinary care, etc. The answer of the defendant denied the allegations of negligence and damages, and set up the defenses of contributory negligence and assumed risk.

The testimony of the plaintiff tended to show that at the time he was hurt he was 28 years old. He was injured at George's Spur, a station on defendant's road, on the 18th of March, 1913. At the time he was injured he was in the employ of the Southwestern Telegraph & Telephone Company as foreman of the construction department, and his work was that of general repair of the lines. He had been in the employ of the company 10 or 12 years, and had been working in the capacity of foreman 4 or 5 years; had been working under the directions of one Mr. Burke, who was district plant chief. On the day before the injury he had done a hard day's work, and on that night went to Augusta, from which place he expected to go to do some work the next day near George's Spur. The night of the day before his injury he got only about 2 hours' sleep. He went to work early the next morning. He left his work at noon, and went to George's Spur, a flag station on defendant's road, for the purpose of boarding a train to Augusta to get his dinner. There was nothing at George's Spur but a little platform 8×10. He was expecting to take defendant's train from Little Rock to Memphis, which ordinarily passed the Spur at about 12:30. He was sitting on the platform, about 2 or 2½ feet from the track, with his feet on the ends of the ties, 8 or 10 inches from the rail. He was tired, sleepy, and worn out, and dropped off to sleep, leaning over toward the track with his face in his hands (he indicated the position to the jury). The next thing he knew was the next morning, about 7 o'clock, when they carried him into the operating room at Little Rock. He could just remember going into the operating room, and passed away; did not remember anything until the next evening about 5:30; then he passed off again, and did not remember anything until 3 or 4 days afterwards. He felt the lick on the right side of his head when he was hit, but did not know what it was. When he became conscious there was a big scar down his face, and a big scar on his right arm, and both his legs were off. When he finally became conscious of what had occurred to him, he had the headache. His legs and his arm and shoulder hurt him. His right arm felt like it was dead. There was a second operation on the left leg, four weeks after the first operation; then there was another operation on both legs. He suffered greatly in the hospital and after they brought him to his home at Newport; his legs ached all the time, necessitating his having medical attention. A doctor at Newport operated on him again — opened up his leg and took out four or five bones. He himself cut out little pieces of bone that were working out of the flesh of his limbs, which the doctor did not take out.

He testified that his limbs hurt him all the time, aching and burning. Some nights he could not rest; was nervous; would wake up. Sometimes he would attempt to get off the bed, and think that he had both feet, and nearly fall off the side of the bed. His feet hurt something like there was a hurting in the bottom of his foot. His method of locomotion was a rolling chair. He did not go to town often; he felt like people were looking at him. Before he was injured he had been under his chief, Mr. Burke, about 3½ years, and had taken vacation during that time amounting to about 4 days. He was getting $65 a month and his expenses. He had paid out $175 for medicines and medical attention. The track approaching George's Spur from Bald Knob, in the direction from which the train came, was perfectly straight for a distance of 6 or 8 miles. There was nothing that could have obstructed the view of the track there. The train was coming from the west, and going east.

Witness Burke testified that he was in the employ of the Southwestern Telegraph & Telephone Company as district plant chief. McMichael worked under him. With reference to industry, his character was the best that a man could have in every respect. He was sober, and was competent in every line of his work, and was in line of promotion. If he had been promoted, he would run up just as high as he worked himself up to be — up as high as superintendent, if he could do that. Witness' position was next to that of superintendent. If McMichael got a job as foreman, he was in line of promotion for witness' position. Witness' position paid $115 and expenses per month, which was gradually increased each year to $150. McMichael's wages were to have been raised in the near future to $70 per month, if witness' recommendation went through. Other witnesses testified to the same effect as to McMichael's character for industry and sobriety.

The engineer who was on the train that injured McMichael testified that he had been a locomotive engineer for over 30 years. When approaching George's Spur on the day of the injury, at the usual distance, he sounded the station whistle. He got no signal to stop. There was no one on the platform, and no one in sight to signal the train to stop. Consequently he did not slacken the speed of the train. On approaching the station at George's Spur, he noticed an object which resembled something like a sack at a distance, and looked like feed or something on the platform. He never took his eyes off it. When he got within 450 feet of the object, he saw that it was a man. It was a man who was in a sitting posture, with his head down so low that you could not distinguish it as a human being on the platform. As soon as he saw that it was a man, he shut off steam, applied the brakes in emergency, pulled the whistle, opened his sand, and did everything that could be done to stop; that, seeing and realizing that it was a man in a dangerous place, he gave a continuous blast of the whistle. The man never moved as long as he was in the engineer's vision. The train consisted of five cars. The engine and baggage car ran by him, and the front end of the first coach stopped at McMichael. The witness demonstrated before the jury the position in which he saw McMichael on the platform. He was sitting about the middle of the platform, with his feet down straight, not on the rail, but down by the ties. His head was bowed down on his knees, just as low as it could be, so that you could not see his head at all. At about 700 or 800 feet he saw an object there which looked like a sack, like something like feed had been left there on the platform. He ran past him about 130 feet. The track was straight from the Bald Knob end of the line for 10 miles. He was running between 35 and 38 miles an hour when he first saw the object. He was keeping a constant lookout, and could see from his side as well as the fireman could see from his side. Witness' eyesight was good, and it was a bright clear day. It was impossible for witness to stop the train in the space after he discovered that the object on the platform was a man. Witness, in his place on the engine, was about 5 feet above the track. McMichael was in such position that witness did not see his hands; he had them hid. The equipment of the train was in first-class working order. After discovering that the object was a man, witness stopped the train in about 580 feet. He had been running on that line something like 3 weeks when he struck McMichael. There was a slow board close to the Spur, with the word "Slow" on it, which is a sign to slow up for the draw-bridge, but not to slow up at the point where the board was.

The testimony of the fireman tended to corroborate the engineer as to the position of McMichael and as to the efforts that were used to stop the train. The fireman stated that he noticed the object on the platform; that he was putting in coal between 400 and 500 feet from George's Spur. The engineer sounded the alarm whistle. He finished his fire and then raised up, probably a distance of 150 or 200 feet from the platform, when he noticed the object on the platform. He rang the bell, and the engineer did everything he could with the whistle, but still the object did not move. Everything was done that could be done to stop the train.

The testimony of the conductor, brakeman, and other witnesses tended to corroborate the testimony of the...