St. Louis, Iron Mountain & Southern Railway Company v. Neal

• Decision Date: 15 October 1906
• Citation: 98 S.W. 958,83 Ark. 591
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. NEAL
• Court: Arkansas Supreme Court

98 S.W. 958

83 Ark. 591

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. NEAL

Supreme Court of Arkansas

October 15, 1906

[Copyrighted Material Omitted]

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge affirmed.

STATEMENT BY THE COURT.

The St Louis, Iron Mountain and Southern Railway Company owned and operated a railway, which was engaged in interstate commerce and extended from the city of Van Buren, in this State, through the Indian Territory, to the city of Coffeyville, in the State of Kansas. The town of Sallisaw, in the Indian Territory, is on its line of railway. George W. Taylor was employed by it as a brakeman on one of its freight trains. On the 18th of January, 1899, this train left Van Buren for Coffeyville. It had two cars to be left at Sallisaw. When it reached that place, the train was uncoupled for the purpose of leaving these cars on the side track, and the engine, with several cars attached, moved forward, leaving the caboose and other cars standing on the main line. The two cars that were to be left were placed on the side track, and the cars attached to the engine were pushed or kicked back towards the caboose and cars left on the main line. The front car of those pushed or kicked back on the main track, it being first in line in the direction they were moving, was equipped with "the old-fashioned link and pin drawbar." It was moved back for the purpose of attaching it to the cars left with the caboose. The car to which it was to be coupled was equipped with an automatic coupler, but its drawhead was so made "that the link and pin coupler could be used when it was necessary to couple to a car having that coupling." As the cars to be coupled were coming together, Taylor stepped between them, and inserted a link in the drawhead of the automatic coupler. The cars approaching came with great force; and when they were near the car to which they were to be linked, he endeavored to get from between them, but was caught and killed.

Jonathan Neal was appointed administrator of the estate of the deceased, qualified as such, and brought this action against the Railway Company for the damages to his widow and next of kin caused by his death, alleging that it was the result of the negligence of the defendant in failing to have the drawbars on the cars that he attempted to couple "of even, uniform or standard height, as required by the laws of Congress." The defendant answered, and denied that its negligence contributed to the death of plaintiff's intestate, and alleged that it was caused by his own negligence.

The issues in the action were tried by a jury in the Crawford Circuit Court; the defendant recovered a judgment; plaintiff appealed to this court; the judgment was reversed, and the cause was remanded for a new trial. Neal v. St. Louis, Iron Mountain & Southern Railway Co., 71 Ark. 445.

Upon a second trial in the circuit court the plaintiff recovered a judgment for $ 14,000; and the defendant appealed.

The law of Congress on which this action is based is section 1 of an act of Congress entitled "An act to promote the safety of employees and travelers upon railroads by compelling common carriers in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving-wheel brakes, and for other purposes," approved March 2, 1893, which is as follows: "That within ninety days from the passage of this act the American Railway Association is authorized hereby to designate to the Interstate Commerce Commission the standard height of drawbars for freight cars measured perpendicular from the level of the tops of the rails to the centers of the drawbars, for each of the several gauges of railroad in use in the United States, and shall fix a maximum variation from such standard height to be allowed between the drawbars of empty and loaded cars. * * * And after July 1, 1895 no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard above provided for."

Within the time designated by the act the American Railway Association filed with the Interstate Commerce Commission the certificate of their designation, which, in part, is as follows: "Resolved, that the standard height of drawbars for freight cars, measured perpendicular from the level of the tops of the rails to the center of drawbars, for standard guage railroads in the United States, shall be thirty-four and one-half inches and the maximum variation from such standard height to be allowed between the drawbars of empty and loaded cars shall be three inches."

In the second trial Earl Witt, a brakeman, testified that he saw the cars the deceased attempted to couple, after the accident, and that the automatic coupler appeared to be about three or four inches lower than the other; and that to determine this difference he made no close inspection or measurement. Charles Lattin, another brakeman, testified that he examined them, and one appeared to be one, one and a half, or two inches higher than the other, and one two inches thicker than the other. He says: "When the cars came together, I noticed these two drawbars, the best I could see, passed each other kind of to the side and over the top. In the automatic coupler there is an opening that is called a jaw; space in there that fastens in the knuckle. The drawbar appeared to go in this opening of the automatic coupler." Again he says: "A brakeman handed me the link (the link with which the deceased attempted to couple the cars). I found one drawhead broken off; one part of the automatic coupler was broken off. The knuckle on the automatic coupler was broken off. There was a scratch or two on the automatic drawhead; I think the jaw had scratched on it; on the side of the corner. The link had a bright place on the top of it; a bright mark on the link. The link was twelve or fourteen inches in length. The bright spot on the link was on the side of it--on the flat side of the link. On top is all I noticed. It was on the flat side of the link. Both prongs of the link were bright." He testified that one car was loaded to its full capacity, and that the other had a light load. W. H. McPherson and M. D. Sanders, car inspectors, testified that they examined the cars a very short time after the accident, while they were standing on the track, and measured the height of the drawbar in each car at the ends, where the same came together in the collision, from the centers of the drawbars to the top of the rail, and found that the height of one was 32 1/2 inches and of the other 33 1/2 inches, a difference of one inch.

The evidence tended to show that Taylor attempted to couple the cars, and, failing to do so, to get from between them before they collided, and was caught and killed. Witnesses present testified that the moving car was traveling at a speed which they variously estimate from three to eight miles an hour.

Defendant offered to prove by many witnesses, who saw Taylor going between the cars to make the coupling, that they impulsively cried out when they saw him and made expressions like these, "Watch that man! He will be killed if he goes in there!" "Those cars are going to hit like hell, and if that fellow goes in there he will get killed!" "That brakeman will be killed if he goes in there!"

The court instructed the jury over the objections of the defendant as follows:

1. "The Act of Congress fixes the standard height of loaded cars engaged in interstate commerce on standard gauge railroads at thirty-one and one-half inches and unloaded cars at thirty-four and one-half inches, measured perpendicularly from the level of the face of the rails to the centers of the drawbars, and this variation of three inches in height is intended to allow for the difference in height caused by loading the car to the full capacity, or by loading it partially, or by its being carried in the train when it is empty. Now, the law required that the two cars between which Taylor lost his life should be, when unloaded, of the equal and uniform height from the level of the face of the rails to the center of the drawbars of thirty-four and one-half inches, and, when loaded to the full capacity, should be of the uniform height of thirty-one and one-half inches. Now, if the plaintiff by a preponderance of the evidence shows a violation of this duty on the part of the defendant, then this is negligence; and if the proof by a preponderance also shows that this caused or contributed to the death of Taylor, then you should find for the plaintiff, unless it appears by a preponderance of the evidence that Taylor was wanting in ordinary care for his own safety, and that this want of care on Taylor's part for his own safety caused or contributed to the injury and death sued for, in which latter case you should find for the defendant."

"2. If there was the difference between the height of the center of the drawbars in the two cars in question, as indicated in the first instruction, then the question arises whether this difference caused or contributed to the injury and death of Taylor sued for. On that point, if such difference existed and but for its existence the injury and death of Taylor would not have happened, then such difference is said in law to be an efficient proximate cause of Taylor's injury and death, although it may be true that other causes may have co-operated with this one in producing the injury and death of Taylor, and but for these other co- operating causes the injury and death of Taylor would not have ensued. But, if such difference in height of the center of the drawbars as aforesaid actually existed, yet, if the injury and death of Taylor would have ensued just the same as it did without the existence of such...