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

• Decision Date: 28 May 1906
• Citation: 95 S.W. 137,79 Ark. 225
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. CAIN
• Court: Arkansas Supreme Court

95 S.W. 137

79 Ark. 225

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

Supreme Court of Arkansas

May 28, 1906

Appeal from Chicot Circuit Court; Zachariah T. Wood, Judge reversed.

STATEMENT BY THE COURT.

The plaintiff, Samuel E. Cain, brought this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages sustained on account of being run over by cars on defendant's road at Eudora, Arkansas.

The circumstances attending the injury were, substantially, as follows:

The railroad at Eudora runs north and south, and there are four tracks at the point where the injury occurred. Counting from the west, there is first a sidetrack, called the "house track"; next is the main track; next is a sidetrack called the "passing track," and the last on the east side is an open track, running off to a gin. The tracks run through a deep cut, and engines and a steam shovel were at work excavating, loading and hauling dirt for use in construction of the road. The injury occurred about 5:30 o'clock in the afternoon of May 30, 1904, while plaintiff was attempting to cross along a foothpath used by the public. This path was 244 feet north of the street crossing. Plaintiff and a number of other persons, from six to ten in number, according to the varying statements of the witnesses started from the west side of the railroad tracks to accompany and assist an officer conducting a prisoner to the calaboose, situated on the east side of the tracks. When they crossed the tracks, several of the posse were immediately in front of plaintiff, and several behind him, but all were close together. They crossed the house track and main track and attempted to cross the passing track at the south end of a line of three or four cars standing on that track, when a line of moving cars which had been pushed in on this track by an engine struck the standing cars, and set them violently in motion, and plaintiff was struck, knocked down and seriously injured. The line of cars pushed in by the engine--16 in number--had been standing on the main track north of the end of the switch for about an hour, loaded with dirt, and when the passenger or mixed train arrived, the engine was detached from its train, and coupled to the north end of the cars, and pushed on to the passing track. As soon as the cars cleared the switch, which was before the front end reached the cars near plaintiff and his companions, the engine was detached therefrom while the cars were in motion, and back on to the main track, where it was standing several hundred yards distant when the accident occurred. The cars pushed in by the engine were equipped with air brakes, but none of the cars had handbrakes or other equipment for use in checking or controlling them. The air brakes contained no air, and the hose connecting the brakes was not coupled to the engine which pushed them on the switch. A brakeman was seen standing on or near the front end of these cars at the time and immediately before they struck the cars near plaintiff. There was evidence tending to show that no signal or warning of any kind of the approach of the moving cars was given, and that no effort was made to check the cars.

Negligence of the servants of the company is charged in several particulars, each of which charges is denied in the answer and contributory negligence on the part of the plaintiff in going upon the track without looking and listening for approaching cars is also pleaded.

The only charge of negligence on the part of the defendants which was submitted to the jury was that of alleged failure of the employees in charge of the train of cars to exercise care to avoid injuring plaintiff after they discovered his perilous position.

The court gave the following instruction on that subject at the request of plaintiff:

3. "If you should find from the testimony that plaintiff was guilty of contributory negligence in going...