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

• Decision Date: 31 March 1913
• Parties: ST. Louis, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HEMPFLING
• Court: Arkansas Supreme Court

156 S.W. 171

107 Ark. 476

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

Supreme Court of Arkansas

March 31, 1913

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

STATEMENT BY THE COURT.

Louis Hempfling was a brakeman in the employ of appellant. On the night of the 22d of January, 1912, about 10 o'clock he left Argenta on a freight train consisting of coal cars and a caboose, going west to Spadra. After opening the switch while in the discharge of his duty, he boarded the twelfth car from the caboose while the train was pulling out of Argenta, and in passing from the twelfth to the thirteenth car, going towards the engine, where his duty called him, he fell between the cars. His body was found lying face downward, the head being towards Argenta and the feet towards Fort Smith. The head was severed from the body and indicated that it was run over by the wheels on the right hand or north side of the train as it was passing west. The clothing was not disturbed, and the blood and brains were immediately around the body, indicating that the body had not been dragged by the train after it was struck.

The appellee, as administratrix of Hempfling's estate brought this suit, predicating her right of action upon the negligence of the appellant in failing to equip the two Illinois Central cars between which Hempfling fell with handholds or grab-irons, which were shown to be necessary to enable brakeman to pass safely from one car to another in the discharge of their duties. Negligence was also alleged in failing to provide a safe track for the passing of trains at the rate of speed that the train was running at the time.

The appellant denied all the material allegations of the complaint, and set up affirmatively the defenses of contributory negligence and assumed risk.

Giving the facts their strongest probative force in favor of the appellee, the testimony tends to show the following:

Hempfling was a stout healthy man, pretty active and got about the cars in good shape. He was an experienced brakeman, a man of good habits, and industrious, and was earning about $ 100 per month at the time he was killed. The thirteenth car was an 80,000 capacity and the twelfth car 100,000 capacity. The twelfth car was about forty-two inches from the floor to the top of the side. The thirteenth car was about thirty-six inches from the floor to the top of the side. The twelfth car was a solid car that is, didn't have drop ends. The thirteenth car was a drop-end car, and had the ends down at the time of the accident. The twelfth car had hand-holds on the sills on both ends and one grab-iron on the front end, the direction in which the train was going, to the right of the middle and about eighteen inches down from the top of the car making the grab-iron about twenty-six inches from the floor. The thirteenth car had a sill handhold between the coupler and the outside of the car on the right side. There were no grab-irons at all on the thirteenth car except on the sills. The handholds on the sills were used for breaking purposes while the brakemen were on the ground. A majority of the Missouri Pacific-Iron Mountain cars have grab-irons in the middle of the end of the cars, over the couplers, ranging in number from three to five. The 80,000 capacity cars have from three to four and the 100,000 capacity cars from four to five. These grab-irons are from the drawbar to the top of the car at different distances. They are from eighteen to twenty-five inches long. They are placed there for the use of the train men in going from one car to another and are for the protection of the brakemen while the train is in motion. The brakemen, whether they cross to the right or to the left of the center of the car in passing from one car to the other car, reach these grab-irons from any part of the end of the car. Most of the Missouri Pacific-Iron Mountain system cars had ladders down the center of the ends. That was the latest way in which they were equipped. The different railroads haul cars interchangeably and a brakeman don't pay any attention to what system or company a certain car belongs. He performs his duty with reference to the train he is on regardless of any car in it being the property of another company.

The train on which Hempfling was employed that night was made up at Argenta, where the railway company maintain an inspector whose duty it was to go over the train and see that it was in good order before the train left. If in the inspector's judgment a car was not properly equipped with grab-irons it would be his duty to have them put on or cut the car out of the train.

The thirteenth car had only about an inch and a half of sill between the end of the car and the drop end, but these projections were not sufficient to constitute footholds. The space between the two cars was something like two and a half feet. It was the usual and customary method for brakemen to use the grab-irons in going from car to car while the train was in motion. It was more convenient and less dangerous for them to use these handholds and their absence increased the hazard to the brakemen if the train was in motion and making a speed of ten to fifteen miles an hour, as it was doing when Hempfling was killed. A brakeman can steady himself in going from car to car while the train is in motion without using the handholds on the end.

The rules of the Interstate Commerce Commission, although adopted after the injury, were introduced without objection, for the purpose of showing what was considered by it as proper equipment of cars for the necessary protection of train men in the way of grab-irons or handholds, and these rules showed that eight or more handholds to the car, four at each end, in addition to the sill handholds, were necessary. It was also shown that in all of the large cars they usually have foot rests and two handholds above them, and where there were no foot rests three handholds above where the foot rests would be.

It was shown that at the place where Hempfling was killed there were low joints in the track where the rails come together, which would cause the cars to roll and tilt as they passed over the track and make "it disagreeable to get over."

One of the witnesses testified that in attempting to pass from one car to the other "it is safer to take hold of the handhold. If there is no handhold to the car to which you are going you have to step from the other car to that car without holding to anything, and if the end of the front car is down there would be no handhold or anything else Hempfling could have held to; he just had to jump to the front car." Witness further testified that he didn't need the grab-irons on any car, but that he usually used the grab-irons.

Another witness testified that there would be no danger at all if there were grab-irons in the usual and proper place, but that if the grab-irons were not there the result is a brakeman "might get the worst of it. He is always expecting them there because it is the general rule that they are there."

There was further testimony to the effect that it would not be safe for a brakeman to go over the cars at the place where Hempfling was killed where the cars didn't have grab-irons upon them; that it would be a chance whether he got over. Witness testified that if a brakeman in pursuance of his duties in crossing cars finds no grab-irons that he is supposed to get over anyhow. One witness testified that "if a brakeman would lose his balance in leaving a car and fall towards the drop end of car, if the drop end had grab-irons he could grab at these grab-irons like a drowning man grabbing at a straw. If there had been a grab-iron where they are always found on this drop-end door, a brakeman falling on that door might have saved himself." Another one states that if he had fallen where the grab-irons were, if they had been there, he might have caught hold of them.

A witness who was a fellow-brakeman with Hempfling and who was on the twelfth car when Hempfling boarded the same, in describing the occurrence, says: "I started towards the caboose and he started towards the engine and climbed over the car. I don't know whether I got over the next car or up on the first car. I heard something that attracted my attention like a lamp globe brake and I looked around and couldn't see him, and I felt the car run over something, and went there and found his lamp globe and gave them a stop signal, and stopped the train, and I went back and found him dead. The lamp globe was broke and the lantern was up in the car that he was getting into." Witness didn't remember how far in the car, but he thought just near the end gate. Witness didn't know where the lamp struck when it crushed.

Another witness testified that the oil "which had apparently been spilled from Hempfling's lantern was on the thirteenth car, on the left-hand side, near the center of the car, as the train was proceeding, and about two feet from the end gate." Witness discovered oil and a piece of the lantern globe. The lantern itself had been picked up by some one else when witness got there.

The appellant requested a peremptory instruction, and also presented prayers for instructions to the effect that there was no negligence "because of any defect in handholds" and "because of any defective condition of the track." And also presented requests for instructions to the effect that under the facts disclosed Hempfling had assumed the risk.

The court, at the instance of the appellee, and also at the instance of the appellant, gave instructions presenting the issues of negligence, contributory negligence and assumed risk. The jury returned a verdict in favor of the appellee in the sum of $ 4,000....