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

• Decision Date: 21 June 1915
• Docket Number: 64
• Citation: 178 S.W. 320,119 Ark. 349
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STEEL
• Court: Arkansas Supreme Court

178 S.W. 320

119 Ark. 349

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

No. 64

Supreme Court of Arkansas

June 21, 1915

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

This is a suit by the administrator of the estate of R. D. Steel, for damages to his estate and to his widow and children, for personal injuries to him, alleged to have been caused by the negligence of the railroad company, and to have produced his death.

The answer denied the allegations of the complaint and pleaded as defenses thereto assumed risk and contributory negligence on the part of deceased.

It appears from the testimony that R. D. Steel was in the employ of the railroad company as a car repairer in October, 1912 and while some switching was being done at Benton, was directed by the foreman of the repair gang, Sam McDonald, to repair some rods under certain cars that were in bad order and while they were standing upon the passing track. He and Martin, the man working with him, went some 200 feet and got the rods and went under the cars to make the repairs, and before they had finished, another train switching, backed in on the track to couple on to the string of cars in which was the car being repaired. They shoved the cars down two or three car lengths, moving slowly, at the rate of about a mile an hour. There was no blue flag put out by the car repairers as the rules of the company required, to indicate that men were at work upon the car, and to protect them against its being moved until the repairs were completed.

Lilburn Wright testified that he was present when the injury occurred, working on the dirt train; that he had come over from Bryant, unloaded a train load of dirt between there and Benton and was shoved in on the passing track; that the foreman of the repair gang, McDonald, told Steel and Martin to go under certain cars and repair the brake rods, or some other rods under them; that on account of the scarcity of cars, they did not switch them out of the train, and that they could put the rods on while they were putting other bad order cars on the repair track. "They went and got the rods and brought them back, and Mr. Steel said something about the danger of going under the cars, so McDonald told Mr. Steel to go ahead and put the rods under there, and I will look after you; and, while this was being done, another engine came in from the back end and shoved these cars up some two or three car-lengths. At the time when the cars were being shoved, Steel was under the car, I presume. I saw him go under the car to put the rods under there and never paid any more attention until I heard somebody halloo. This attracted my attention, and I looked around and saw Martin giving a stop signal. About that time Steel came out from under the car, just about the time the car stopped. I can not recall just what Steel said when he came out, but he was making a howl at McDonald about not looking out for him. While this was going on, McDonald was right there with me close enough to see this man and know what was going on, not more than twenty or thirty feet away. While Steel went under the car, he stayed right around there, and was in plain view all that time."

McDonald testified that he was car foreman for the railroad company at Benton; that Rhad Steel was working under him, had been for about forty-five days; that they were cutting down a grade at Bryant and the crew would bring over to Bryant a train of loaded cars, and the other crew would unload them. He discovered that a couple of cars had rods off of them and two others had the draw bars in bad order; and ordered the latter set on the repair track, and told Rhad Steel, the deceased and Martin to put on the rods and where to get them, telling them first, "Don't ever go under a cut of cars without putting the blue flag out." He said he told the workmen this every morning, and they were given a card each day with the rule printed thereon as follows: "Examine personally scaffolding, tackle and all other appliances before trusting them. If your duties require you to go around, under or on cars, protect yourself with blue signals."

Witness said the repairers went under the cars without putting up the flag and the extra backed into the cut of cars on which they were working. He was standing by "the cut of cars," and did not know they had been moved until he heard Martin call out, or laugh, and turned around and saw Rhad Steel lying upon the truss rods kicking. The cars moved a couple of car-lengths, when the train stopped, Rhad got out from under the car and came by and said, "I will see what right they have to butt in to a cut of cars I was working on." I did not know whether they had a flag up or not, but do know that if they had had a flag up, the cars would not have been moved.

It was the duty of the man at work repairing the car to put up the flag and the man who put it up, took it down, and no other had the right to remove the flag where a man was working. That the foreman could not take the flag down that was put up by a person working on a car, and there was sufficient space between the truss rods running lengthwise of the car and the bottom of the car for a man to lie upon them, and that was where Steel was when he saw him lying upon top of the rods when the car stopped, he saw him get off of them. The cars were moved down slowly, and he could not have told they were being moved if his attention had not been attracted by Martin hollering or laughing, and turned and saw Rhad kicking down there while lying on the truss rods.

Witness stated he did not see Lilburn Wright around there at all and that he was twenty-five or thirty car-lengths away; that only he, Martin, and conductor Sheppard were present. Denied making any statement to Steel and Martin that he would protect or look out for them when they went under the car as testified by Wright, and that Steel had made any remark to him about it being dangerous to go under the cars; said it was not dangerous for him to go under the cars on the passing track after putting the flag out as the rules required.

He had seen some of the boys going to work without the flag, but had not seen Steel or others doing it along about that time; that if they did so, it was their own fault; that the flags were there in the office to be used, and that they were daily instructed and repeatedly told to use them as the rule directed when making repairs. He said that Steel did not work long after the train bumped into the cars, that he came to where he was working on a car, about 2 or 3 o'clock, and was told to take a sledgehammer and knock the bolts out. He worked a while and knocked out one or two and claimed that his back hurt him, and quit work.

Martin, the repairer working with Steel, testified that they went to get the bottom rods to put on the cars, as directed by McDonald, the foreman; went two or three hundred feet away for them; that they did not put up the blue flag, although the rule required it done. He knew what the blue flag rule was and so did Rhad Steel; he knew it was his duty to put out the blue flag before he went under the car. "I know he knew, because he was told many times, as I was, in my presence, by McDonald about it, and we also had work cards upon which the rule is printed. Rhad Steel saw the card and knew the rule, and Mr. McDonald did not give us any assurance, or make any statement that he would protect us, and that it was not necessary to put up a blue flag. I did not see Lillburn Wright anywhere around there. He was not with me, and Foreman McDonald and Rhad Steel when the foreman requested me and Rhad to go and get the materials and make these repairs. He was not with me or Foreman McDonald when I came back with the necessary materials to make the repairs. The cars were coupled in so easy at the time that if you had not seen them move, you would not have known it. They could not have possibly coupled any easier than they did. They moved the car about a mile an hour, I suppose--just barely moving them. They moved the car between two and three car-lengths. I did not know they had coupled into the cars until they began to move, and when I observed that they moved, I got out and gave them a stop signal, and they stopped. At this time Rhad Steel was on top of the rods. The truss rods that hold the center of a car." He said they forgot to put out the flag; that he did no think about it.

The conductor testified that he did not know any one was at work on the cars when he coupled on to them, and had moved the train about two car-lengths when he got the signal to stop, and stopped immediately; that there was no blue flag displayed, and if there had been, they would not have coupled into the string of cars.

The testimony shows further that deceased went to his home after the occurrence that day; complained of his back hurting him; and from that time on he complained of suffering pains in his back, walked with a stick, and was not able to do any further work and his health continued to decline, and his appearance indicated suffering. That he had formerly indulged in and enjoyed riding horseback, but never rode again, and that he went about this way until some time in August, 1914, when he died from typhoid fever.

His widow testified that there was a bruised place on his back and side after he claimed to have been injured, but the only abrasion of the skin was a small place on the side of his head. That he complained continually afterward of pain in his back and in the following June took fever from which he never recovered.

The first doctor who attended him after the injury found him in bed, complaining of his back, but could discover no symptoms of an injury except he thought...