St. Louis, I. M. & S. R. Co. v. Stewart

• Decision Date: 12 June 1916
• Docket Number: (No. 48.)
• Citation: 187 S.W. 920
• Parties: ST. LOUIS, I. M. & S. R. CO. v. STEWART.
• Court: Arkansas Supreme Court

187 S.W. 920

ST. LOUIS, I. M. & S. R. CO. v. STEWART.

(No. 48.)

Supreme Court of Arkansas.

June 12, 1916.

Appeal from Circuit Court, Lincoln County; A. H. Rowell, Special Judge.

Action by Charles Stewart against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. B. Kinsworthy and R. E. Wiley, both of Little Rock, for appellant. Pace, Seawell & Davis, of Little Rock, for appellee.

McCULLOUGH, C. J.

The plaintiff, Charles Stewart, was engaged in the service of the defendant as a locomotive engineer, and received personal injuries while he was running a train through the railroad yards at Little Rock. This is an action against the company to recover compensation for his injuries, which are alleged to have been caused by negligence of other servants of the company. It is conceded that the service being performed by the plaintiff at the time of his injury was connected with interstate traffic so as to bring the case within the operation of the federal Employers' Liability Act. Plaintiff was bringing an extra freight train from Pine Bluff to Little Rock, and as he came through the Little Rock yards, his fireman discovered a switch engine on the track ahead, and when plaintiff discovered that a collision was impending, he shut off the throttle and put on the emergency brakes and jumped from the engine; and in doing so he fell upon the edge of the track and received serious injuries.

Plaintiff's testimony was that he was coming along at a speed of 8 or 9 miles an hour, and that as he approached a curve of the track the yardmaster came out from the yard office and first looked around the curve, and then turned and gave him the "highball" signal, which meant that the track was clear, and that he could proceed expeditiously, and that as the engine started around the curve the fireman discovered the switch engine ahead and called out to him "jump!" which he did, after having, as before stated, shut off the throttle, put on the brakes, and opened the sand. Plaintiff's train was running north, and the switch engine was coming south. Plaintiff's fireman stepped from the engine when it lacked a few feet of striking the switch engine, and was not injured. The engineer on the switch engine and the other operatives also escaped unhurt. The testimony of the plaintiff tends to show that his engine would have come to a stop before it reached the switch engine if the latter had been properly controlled, but that the switch engine was allowed to run on and produce the collision. On the other hand, all the other eyewitnesses testified that the switch engine came to a stop and turned backward and ran about 35 feet before plaintiff's engine struck. The testimony of the plaintiff also tended to show that the yardmaster could have seen the switch engine from the point where he was standing when plaintiff says that the "high-ball" signal was given.

Mr. Brown, the yardmaster, was introduced as a witness, and testified that he did not give the plaintiff any signal at all, but that the plaintiff's engine came along, running a speed of at least 15 miles an hour, and that just before it reached the yard office he heard the switch engine whistle back up the track, and he looked around, and it was in sight and appeared to have come to a stop, and that when he looked toward plaintiff's engine again he saw the plaintiff making the jump. Other testimony adduced by the defendant tends to show that the plaintiff was running his engine at the rate of from 15 to 20 miles an hour when he approached the curve and jumped from the engine.

Certain rules of the company, regulating the handling of trains through the yards, were introduced in evidence, and they are relied on as establishing negligence on the part of the plaintiff in violating those rules. Rule A-12 reads in part as follows:

"Freight trains will not exceed a speed of ten (10) miles per hour between Argenta and south yards limits East Little Rock yard."

Rule A-16 reads as follows:

"Second and inferior class trains and extras must run under control through yard limits at Little Rock, Argenta, East Little Rock, Pine Bluff and McGehee. In case of accident, responsibility rests with the approaching train."

Those rules were in force at the time of the injury, and plaintiff had a copy of the book of rules with him on his engine, and was familiar with them.

It is agreed that running "under control" means to run trains so as to stop within vision, or, in other words, to keep the engine under such control that it can be stopped within vision of any object which may appear ahead on the track. Plaintiff's train was "the approaching train" within the meaning of the rules. It was also conceded that the switch engine belonged to the same class of trains and had equal right of way, that the switch engine was rightfully on the main track at the time of the collision, and that the only limitations upon the right to operate it there were those prescribed by the rules herein mentioned. In order, however, to obviate the force and effect of the rules as written, plaintiff undertook to show that a custom had been built up, whereby the giving of the "high-ball" signal by the yardmaster was construed to be an assurance that the track was clear, and as a direction to hurry on without regard to the rule requiring that the engine be kept under control. There is a sharp conflict in the testimony on this branch of the case. Several witnesses introduced by plaintiff testified as to that custom. In view of the controversy concerning the effect of the testimony, it is well to set out that which appears to be the strongest in favor of the plaintiff. The following extracts are taken from the testimony of witness Smith, who had worked for defendant as a locomotive engineer and showed familiarity with the customs and the operation of trains:

"Q. Now what do you mean by `under control'? A. Why you would handle your train in a way that you could stop it within the distance that you could see. That is what I consider under control, and what railroads generally consider to be under control. Q. Within the distance of your vision down the track? A. Yes, sir. Q. State whether or not in passing through the yards how one proceeds — do you proceed under control? A. Yes, sir. Q. Now, who has charge of the yards? A. The yardmaster. Q. What power has the yardmaster in the yards? A. Relative to the handling of trains through the yards, he has power to stop you, and hold you any place he wants you, or head you in on any track he sees fit to, or tell you to proceed. Q. Now, then, suppose you are proceeding through the yards, and are approaching a curve, and as you approach the curve the yardmaster gives you what is called a `high ball' — what does that mean to the engineer? A. That means for him to go ahead, and go through the yards; that he wants to occupy that track, or wants you to get off that track, and through the yards. Q. Whenever he gives you a high ball it is an order to you to hurry through the yards? A. Yes, sir; that the track ahead of you is clear. Q. That is a rule that has obtained wherever you have worked as an engineer, in coming through the yards of the various systems you have worked for? A. Yes, sir; that is the rule that is practiced. Q. And it means that the track is clear? A. Yes, sir. Q. Now, it is true that switch engines have a right to occupy the main line — that is, as against second and third class trains — but who has a right to put them on there? A. The yardmaster or some one directly under the yardmaster. Q. Then if the yardmaster gives him the high ball, and indicates the track is clear, it is the duty of the yardmaster to know it is clear, isn't it? A. Yes, sir; absolutely."

Cross-examination:

"Q. Mr. Smith, a second and third class freight train passing through the yard limits at East Little Rock, or any other yard for that matter, when it enters the yards, it is the duty of the engineer to pass through that yards with the engine under control, isn't it? A. Yes, sir. Q. That means that he must travel under such speed as to be able to stop within vision. If he goes into the yards, and does not see the yardmaster at all, it is his duty to proceed through the yards with his engine under control? A. Yes, sir. Q. The yardmaster has no right, or no signal given by him would authorize the engineer to proceed with his engine out of control, would it? A. No; I will answer, No, to that question. Q. That would violate the printed rules, wouldn't it? A. Yes, sir; but if he received a signal from that yardmaster— what is commonly called a `high ball' by the railroad men — that would give him a right to hurry through that yard. That would be the same thing as telling him to hurry through this yard. Q. Do you mean to tell this jury that any kind of a signal would obviate or do away with the printed rules about going through that yard with your engine under control? A. I do. Q. Mr. Smith, suppose a man comes along there with a freight train under control, and should see the yardmaster, and the yardmaster would high-ball him, wouldn't he still have to continue under control? A. No; not absolute control. Of course, he wouldn't go 50 miles an hour through the yards, but he would hurry through and would increase his speed and get through. On a curve like that you would have to proceed slow around that curve if you didn't get a signal — any man with ordinary intelligence, of course, would know that — but when a yardmaster comes out there, and gives you a signal, what does he give you that signal for if he wasn't wanting you to hurry along, because he knows you will proceed under control anyway. Q. He knows you will proceed under control when you get the signal? A. Yes, sir. Q. And even after you get the signal, it is your duty to proceed under control? A. No, sir."

Other witnesses testified to the same effect. Plaintiff testified...