St. Louis, Iron Mountain & Southern Railway Co. v. Boyles

Decision Date16 April 1906
PartiesST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BOYLES
CourtArkansas Supreme Court

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

STATEMENT BY THE COURT.

Appellee was in the employ of appellant as "cable man" in a crew that was engaged in construction work on appellant's roadbed. The crew used a construction train, consisting of an engine, tender, and three cars, and on the day appellee was injured the crew was engaged in hauling dirt and unloading it. The train was on a side track, and was backing on to the main line at the rate of eight or ten miles an hour. The switch which connected the side track with the main line had not been thrown, so as to let the cars out, and appellee, who was riding on one of the cars, seeing the condition of the switch, and believing that the cars were going to be derailed, sprang to the ground. He was seriously injured having his ankle thrown partly out of place, and badly sprained. He brought suit against appellant, alleging, with more or less repetition, as the gist of his action, that "the conductor in charge of the train wrongfully and negligently allowed the engineer to start up and move said train and engine without having first adjusted and thrown said switch so as to connect the rails leading from the side track to the said main line." He prayed judgment in the sum of $ 2,000. The appellant denied all material allegations of the complaint, and set up as an affirmative defense contributory negligence.

There was a jury trial, and a verdict and judgment for $ 500.

Affirm.

Lovick P. Miles and Oscar L. Miles, for appellant.

1. It was error to admit testimony as to a conversation between the conductor and engineer, prior to the time of the accident and of the starting of the train, tending to show that the latter was intoxicated. The facts germane to the case were as to the speed of the train as it approached the switch, the failure of the crew to throw the switch, and the nature of the danger apparent to plaintiff at the time he jumped. Above testimony was therefore not admissible. 58 Ark. 179; 61 Ark. 52; 66 Ark. 500; 70 Ark. 562; 55 F. 595; 119 U.S. 99; 57 Ga. 232.

2. In commenting on the foregoing evidence, counsel for appellee made use of language, without rebuke from the court, which was improper, and prejudicial to the appellant. This was error for which the cause should be reversed. 58 Ark. 353; 61 Ark. 138; 63 Ark. 174; 56 Ark. 626; 70 Ark. 305.

3. Appellant asked an instruction to the effect that if the jury found that appellee knew that in leaving side tracks it was the custom not to stop, but to slow down engines before reaching switches, and for an employee to run ahead and open the switch while the engine moved forward, and appellee without protest continued to work with a crew known to him to so act, then he assumed the risk of accidents and injuries from such movement of trains. It was error to refuse this instruction. 54 Ark. 297; 56 Ark. 206. Failure to instruct the jury upon appellant's theory of the case is ground for reversal. 16 Ark. 308; 52 Ark. 45. The court erred in its instruction numbered 5, in that it indicates to the jury the amount of their verdict. The amount sued for in the complaint has nothing to do with the amount of the verdict, since the jury, in assessing compensatory damages, must be governed by the testimony to show the extent of the pecuniary injury. The court ought not to direct the attention of the jury to the amount claimed in the complaint. 58 Ark. 140.

Sam R Chew, for appellee.

1. Under the proof, it was the duty of the conductor to see that the switches were properly adjusted before starting out of the side track, and it was the duty of the engineer jointly with the conductor to look after the condition and position of the switches. The question of negligence on their part was one of fact for the jury; hence it was competent to show their condition at and immediately preceding the happening of the accident. 12 Ark. 782; 48 Ark. 333; 70 Ark. 558; 43 Ark 99.

2. An objection to remarks of counsel is not sufficient, and can not avail on appeal, unless it was pressed to the point of a ruling by the court on the language objected to, and an exception saved to that ruling. 85 S.W. (Ark.), 428.

3. There was no error in the 5th instruction complained of. It is true that it concluded with the direction that in no event should they find for more than $ 2,000, the amount sued for, yet the instruction throughout limits the jury to the damages sustained as shown by the proof--to such reasonable sum as in their judgment from the evidence would compensate him for the injuries, if any, which he had sustained. Moreover, the amount of the verdict--one-sixth of the amount sued for--is conclusive that the jury were not misled, nor the appellant prejudiced, thereby, 58 Ark. 140. The instructions given defined and applied appellant's liability. 57 Ark. 306; 55 Ark. 249; 67 Ark. 209.

4. Upon the facts disclosed in evidence there could have been no other verdict than for appellee, and this court will not reverse the case for error in the instructions. 54 Ark. 289; 56 Ark. 594; 62 Ark. 228.

OPINION

WOOD, J., (after stating the facts.)

1. Appellant in its brief contends that evidence of a conversation between the conductor and the engineer before the train started out in which the conductor asked the engineer "if he was not drunk," and the engineer's reply thereto, and of the appearance of the engineer, that "he seemed excited," was improper and prejudicial. The appellant does not abstract the evidence at all bearing upon the question of whether or not the conductor was negligent in allowing the engineer to start up and move the train and engine without first adjusting the switch so as to let the construction train on to the main line. This was the gravamen of the charge as to the negligence of the company. Without this, even if the above testimony were irrelevant or incompetent, it would be impossible for us to say whether or not it was prejudicial. Because, if the uncontradicted proof should show that the appellant's conductor was negligent in the manner charged, it would be wholly immaterial whether the engineer was drunk or sober just before the train started to pull out. The objection therefore could not avail appellant on the abstract he makes, and for the further reason that there is no reference to the motion for new trial in appellant's abstract, without which it is impossible for us, without "exploring the transcript," to determine whether his exception to the court's ruling was preserved. Appellant's objection to this testimony, therefore, could not avail here. But appellee has not seen proper to object to appellant's abstract, and ask for an affirmance for defects therein. On the contrary, he has set out a full abstract of the testimony from his standpoint on the question of appellant's negligence. From this, it appears, quoting from the language of one of the witnesses, that "it was the duty of the conductor to look after the condition and position of the switches. It is the duty of the conductor to see that the switches are thrown and properly adjusted with the main line before starting out of the side track. The engineer has control of the fireman and brakeman around the engine pertaining to the company's property and safety of the train. The fireman is subject to the command of the engineer. The engineer has control of the head brakeman when he is on the engine. This flagman or head brakeman is compelled to obey the orders of the engineer." This testimony is undisputed, and appellant does not deny that a failure on the part of the conductor to perform that duty would be negligence. Conceding, therefore, without deciding, that the testimony of what the conductor asked the engineer about his being drunk, and the appearance of the engineer was irrelevant and incompetent, it did not go to the question of the negligence of the conductor in failing to throw the switch, and could not have been prejudicial. If the proximate cause of the injury was the negligence of the conductor in failing to see that the switch was thrown before starting the train out of the side track, and this was...

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