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

• Decision Date: 13 December 1915
• Docket Number: 50
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. ARMBRUST
• Court: Arkansas Supreme Court

181 S.W. 131

121 Ark. 351

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

No. 50

Supreme Court of Arkansas

December 13, 1915

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

STATEMENT BY THE COURT.

John Armbrust sued the St. Louis, Iron Mountain & Southern Railway Company to recover damages for alleged personal injuries inflicted by the latter upon the former by its negligence. The facts in the case as shown by the testimony on the part of the plaintiff are substantially as follows:

On the 6th day of September, 1914, as John Armbrust approached a public crossing over the St. L., I. M. & S. Ry. Company's track near Malvern he saw a fast mail train approaching and stopped within thirty or forty feet of the track to let it pass. As the train passed he was standing in the public road that crossed the track. The time was between twelve and one o'clock in the afternoon. He stated that he caught a glimpse of something black coming from the tender, that he saw it flying, got a glimpse of it, and by that time was struck by the missile. A piece a coal struck him on the foot and drove a part of his sock, particles of coal, a shoe eyelet and a piece of shoe string down into his foot. It tore his shoe entirely off his foot and knocked him down.

The plaintiff testified that he saw the tender before the flying object left it and stated that it looked to him as if the tender was overloaded with coal and that he noticed a big pile of coal on the top of it.

Another witness testified that shortly after the plaintiff was hurt he was notified of the fact and went down to the crossing and saw him crawling over the track coming from the north side that he helped him into a buggy and carried him to his house.

The physician who examined the plaintiff shortly afterwards testified as to the character and extent of his injuries and this testimony will be referred to later on. The physician also testified that he took a piece of sock out of his foot and also some particles of coal.

Another witness, who resided near the scene of the accident testified without objection, that two or three days afterwards she was passing over the crossing and saw a piece of coal near the track about as big as a half gallon bucket or a little larger; that pieces of coal were broken off of it and that the coal was far enough away from the track for a man to stand where it lay and be safe from a passing train.

The fireman who was on the fast train the day of the accident testified that the tender is loaded by the hostler; that it has a mould board on it put there to keep the coal from falling off; that the board comes up even with the tank and flares out; that the tender is usually loaded with coal to about the bottom of the mould board and that the coal is piled up higher in the middle; that he observed the way the tender was loaded on the day of the accident and that it was loaded in a proper manner so that the coal would not fall off; that he did not see a lump of coal fall off the tender at the crossing where the accident is alleged to have occurred; and that he has seen coal fall off of the tender.

Another fireman and the hostler also testified as to the proper way to load coal on a tender and said that the tender in question was loaded in that manner because there had been no deviation from the rule.

The engineer on the fast train on the day in question testified that the coal is piled up to near the top of the mould board and is rounded up higher in the middle than on either side. All of the trainmen testified that the vibration of the train causes the coal to shake down and that it would be shaken down considerably between Argenta, the place where the tender was loaded, and the scene of the accident which was more than forty miles distant.

The jury returned a verdict for the plaintiff in the sum of $ 5,000 and the defendant has appealed.

Judgment affirmed.

E. B Kinsworthy, W. R. Donham, and T. D. Crawford, for appellant.

1. The error in the court's first instruction is in placing upon the defendant the burden of proving by a preponderance of the evidence that it was not guilty of negligence causing plaintiff's injury, if the jury found that he was struck by a piece of coal propelled from defendant's train.

Conceding that evidence that the coal was propelled from the tender by the motion of the train, if believed, made out a prima facie case of negligence on the part of the defendant, still this did not change the burden of proof in the whole case.

2. Appellant made specific objection to the use of the words "or will reasonably result to the plaintiff in the future," in the court's instruction on the measure of damages.

There is no testimony in this case tending with reasonable certainty to prove that appellee will in the future suffer pain of body or mind. There is a difference between the expression "will reasonably result," as used in the instruction, and the expression, "will with reasonable certainty result" which is the rule approved by this court. 106 Ark. 186 and authorities cited.

3. The complaint alleged negligence in the loading of the coal in the engine tender, but did not allege negligence in the operation of the train, and the court erred in modifying an instruction requested by appellant to the effect that the defendant was not liable unless it was guilty of negligence in the loading of the coal into its engine tender, by adding thereto the words "and in the operation of the train." It is error to instruct the jury upon an issue not raised by the pleadings. 111 Ark. 134.

4. The verdict is not sustained by the evidence. The doctrine of res ipsa loquitur does not apply in this case. That doctrine is properly applied only when the injury speaks for itself, and establishes the fact that it could not have occurred otherwise than as a result of some act of negligence. 101 Ark. 117.

The evidence tends equally as much to prove that the coal did not fall from the tender as that it did so fall.

When the evidence tends equally to sustain either of two inconsistent propositions, a verdict in favor of the party bound to maintain one of them against the other is necessarily wrong. 57 Ark. 402.

Negligence is not ordinarily presumed from the happening of an accident. 103 Am. St. 243 and note.

Before the statute can be invoked to raise a prima facie presumption, it must be shown that the injury was caused by the running of the train. This was not shown in this case. Plaintiff did not know where the lump of coal came from. 212 Ill. 506, 103 Am. St. 243; 152 Ind. 608, 46 L. R. A. 33; 67 Wis. 616, 58 Am. Rep. 881; 3 Kan.App. 242; 204 N.Y. 324; 112 Ga. 37.

J. C Ross, for appellee.

1. The appellant's objection to the court's first instruction is not well taken. The instruction on its face shows that the jury were required to find from a preponderance of the evidence in the case that the plaintiff was injured by being struck by a piece of coal which fell from the moving train while he was standing near the railway track in the exercise of ordinary care and while he was where he had a right to be.

2. There is no substantial difference between the phrases "will reasonably result," and "will with reasonable certainty result." It needs no argument, with a man's foot in the condition in which plaintiff's was at the time of the trial and with the necessity of operations and doctors bills in the future as shown by the testimony, that pain will be felt in the future. Besides, the evidence shows that if the very best results were obtained, plaintiff would have a weakened foot for life.

3. No new issue was covered by the court's modification of appellant's twelfth instruction. Negligence in the operation of the train was just as clearly alleged in the complaint as negligence in the loading of the coal into the tender.

4. The verdict is sustained by the evidence. The case clearly calls for the application of the doctrine of res ipsa loquitur. 1 White, Personal Injuries, § 111; 6 Thompson, Negligence, § 7643; Id. § 7636; 29 Cyc. 593; 54 Ark. 209; 63 Ark. 636; 24 Ky. L. Rep. 1402, 71 S.W. 516; 74 Ark. 610; 86 Ark. 76, 81; 94 Ark. 246; 57 Ark. 429; 63 S.W. 164, 165, 166; 71 S.W. 516; 71 S.W. 517.

OPINION

HART, J. (after stating the facts.)

It is insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict. We do not agree with counsel in this contention. The facts of the case bring it within the doctrine of res ipsa loquitur.

In the case of Louisville & Nashville Rd. Co. v. Reynolds, 24 Ky. L. Rep. 1402, 71 S.W. 516, under a substantially similar state of facts, the Court of Appeals of Kentucky held that the doctrine of res ipsa loquitur applied. There a person was standing at the depot near the track for the purpose of boarding a passenger train, having been informed that it was approaching. The train turned out to be a freight train and just as the engine and tender passed the plaintiff he was struck by a piece of coal and the court held that the proof of the accident, under these circumstances, was sufficient to warrant the submission of the negligence of the defendant to the jury.

This principle has also been recognized by this court in many cases. In the case of Price v. St. L., I. M. & S. Ry. Co., 75 Ark. 479, the court, at page 491, said:

"The doctrine of res ipsa loquitur does not apply in cases where the accident or injury, unexplained by attendant circumstances, might as plausibly have resulted from negligence on the part of the passenger as the carrier. Nor is it applicable to the death of a passenger that comes by reason of circumstances and conditions that are personal and peculiar to him, and not by reason of any management of, or accident to,...