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

• Decision Date: 05 April 1915
• Docket Number: 291
• Citation: 175 S.W. 1177,118 Ark. 49
• Parties: ST. Louis, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. COKE
• Court: Arkansas Supreme Court

175 S.W. 1177

118 Ark. 49

ST. Louis, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. COKE

No. 291

Supreme Court of Arkansas

April 5, 1915

Appeal from Desha Circuit Court; Antonio B. Grace, Judge; affirmed.

STATEMENT BY THE COURT.

Appellee sued appellant for personal injuries, alleging that appellant maintained its railroad track upon a bridge constructed over Lost Chain Bayou; that the bridge was constructed of wood and timbers, with wooden bents about fourteen feet apart, placed on mud sills which were placed on the surface of the ground below water which was about two or three feet deep; that the bridge was improperly constructed, the bents and sills not being properly braced for the safe running of trains and locomotives thereon; that by reason of such improper constriction, it was of insufficient strength; that the rails, especially at the west end, were old, defective and insufficient; that they were not of sufficient weight, and were insecurely fastened and braced; that the ties were unsound; that the defective condition of the bridge was well known to the appellant; that on March 20, 1914, appellee was in the employ of the appellant as conductor, and was in charge of its train; that the train consisted of about twenty cars, together with the caboose and engine; that the cars were loaded with gravel and ballast; that while the train was passing over the bridge above mentioned at ordinary, speed, a defective rail broke and the bridge collapsed, causing the train to fall a distance of twelve or fifteen feet; that the appellee was in the caboose at the time performing his duties as conductor, and was thrown to the floor and received serious and permanent injuries which he described. The prayer was for damages in the sum of $ 35,000.

Appellant answered, denying specifically the allegations of negligence alleged in the complaint, and the allegations as to the injuries and resulting damages, and set up that the plaintiff assumed the risk.

The testimony on behalf of the appellee tended to show that on March 26, 1914, the appellee was conductor on a train such as described in his complaint, and that while passing over the bridge over what is known as Lost Chain Bayou, the bridge collapsed, precipitating the caboose, with other cars, into the bottom of the bayou, and causing the injuries of which the appellee complains.

The bridge was constructed of heavy pine timber, and the track laid on top of this bridge timber. The bridge did not have any cross braces lengthwise with the bridge from bent to bent. It would not be as strong without these lengthwise braces as with them. The bridge was built three or four years before the accident of March 26, 1914.

One witness who got there within an hour after the bridge fell stated as follows: "I noticed the broken rail; it looked like it had been an old, rusty break along the side and underneath the rail, it did not extend to the top of the rail." This witness was shown exhibit "C," and asked "if that is the way a railroad bridge of this kind should be constructed," and answered, "Yes, that picture shows that the braces run lengthwise from bent to bent." Witness stated that it had been about twenty-five years since he worked as a bridge carpenter. At the time of giving his testimony, he was a day laborer.

Another witness on behalf of the appellee testified that he was a civil engineer, and had seen the appellant's bridge at Lost Chain Bayou several times. Witness was on the bridge about two months before it fell. He was about half-way across when he saw a gravel train coming. He got on the end of a cap while the train passed. The bridge shook so it scared witness, and he started to jump off, but the water kept him from it. Witness, after the accident, noticed a broken rail but did not examine it closely. It wasn't cracked or anything, but just a fresh break.

The appellee testified that he was conductor on the train which at the time of the accident was running about twelve miles an hour. He was sitting at the end of the caboose, and all at once was thrown "like dynamite and landed out in the middle of the floor about twelve or fifteen feet on his right hip." It knocked the breath out of him for quite a time. After about six hours, a caboose and engine came and took plaintiff home to McGehee. Appellee then tells about his being sent to St. Vincent's Infirmary at Little Rock, and about his treatment there; and details the nature of his injuries and sufferings, which will be referred to in the opinion.

The appellant reserved exceptions to certain rulings of the court in the admission of testimony and in refusing certain of its prayers for instructions, which we will note in connection with the other assignments of error in the opinion.

The jury returned a verdict in favor of the appellee in the sum of $ 25,000, and this appeal seeks to reverse the judgment entered in his favor for that sum.

Judgment affirmed.

E B. Kinsworthy, J. C. Knox and T. D. Crawford, for appellant.

1. The court erred in refusing to permit cross-examination of Doctor Marshall with reference to the origin of the nerve that affects the bowel movement, and in refusing to permit appellant to interrogate the witness further on this point.

The questions as to the origin of the nerves which control the rectum and bladder and scrotum, and as to the effect of a displacement of the vertebrae which control the nerves of these organs, was vitally important. The remarks made by the court were calculated to prejudice the jury against the defense which appellant was endeavoring to establish.

2. The court erred in admitting the testimony of the witness Bankston with reference to the condition of the bridge at a time subsequent to the injury. 48 Ark. 460.

3. Instruction 8 requested by appellant should have been given. No instruction given by the court called attention to the necessity of proving that the defect in the rail must have been known to the defendant, or must have been of such character that it should have been known. 78 Ark. 505; 79 Ark. 437; 95 Ark. 477; 54 Ark. 389.

4. The testimony tended to show that the proximate cause of the wreck and of plaintiff's injury was the breaking of a rail, and not any defective condition of the bridge, and that if the train had remained upon the track, the wreak and resulting injury would not have occurred. The ninth instruction therefore should have been given. 79 Ark. 76.

5. Appellant was entitled to an instruction to the effect that proof of subsequent repairs of the bridge in a particular method was inadmissible to establish negligence in the original construction of the bridge. 70 Ark. 179; 79 Ark 388; 78 Ark. 147; 82 Ark. 555; 89 Ark. 586; 105 Ark. 205; 108 Ark. 483. The court therefore erred in refusing to give instruction 11.

6. There was no testimony tending to prove negligence in using the size of rails employed in the place where the accident occurred, and the court erred in refusing to give appellant's thirteenth request for instruction.

7. It was error to refuse to give instruction 16. The court's sixth instruction was a general one to the effect that the employee assumes the risks of injury ordinarily incident to the employment, whereas, the 16th instruction requested is more specific and reaches the essential point involved in the case. It should have been given. 80 Ark. 438; Id. 454; 82 Ark. 499; 87 Ark. 531; 90 Ark. 247; 98 Ark. 17; 96 Ark. 206.

8. Instruction 17 should have been given. The testimony of the doctors with reference to the history of the case, as given them by the plaintiff and his attending physician, was inadmissible, and the jury should have been told that those statements were incompetent to prove plaintiff's condition, etc. 108 Ark. 394.

9. The evidence is insufficient to support the verdict. There is no testimony which tends to prove that the bridge was in a defective condition at the time of the accident, nor is there any testimony which tends to prove that the rail was cracked in such a way that it should have been seen upon reasonable inspection. In the absence of such testimony, there was no case to submit to the jury.

Hoeppner & Young, for appellee.

1. The court was right in not permitting appellant to further cross-examine Doctor Marshall with reference to the origin of the nerve that affects the bowel movement. The character of examination which counsel was pursuing could have only one effect, and that was to confuse the jury.

2. The testimony of Bankston that he examined the bridge, or some timbers in it, subsequent to the injury, was not for the purpose of showing the condition of the bridge at the time of the accident, but was in rebuttal of testimony on the part of appellant to the effect that after the accident the bridge was rebuilt of the same timbers, etc., and that these timbers at the time of rebuilding were sound and in first-class condition. His testimony was admissible.

3. The court's instructions No. 4 and others, already given, covered the same matters as requested by appellant in its eighth instruction; hence there was no error in refusing to give it.

4. The court properly refused to give instruction 9, requested. That instruction improperly assumes that the collapse of the bridge was caused solely by a rail breaking, when in fact it is alleged and proved that the bridge was improperly constructed. The decision relied on by appellant, 79 Ark. 76, is rendered inapplicable by the act of March 8, 1911.

5. There was no error in refusing instruction 11. It was not claimed by plaintiff that longitudinal braces were necessary and the introduction of any such testimony was purely incidental and explanatory of the methods used in rebuilding the bridge. No objection was made to the testimony, nor...