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

• Decision Date: 24 February 1913
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MORGAN
• Court: Arkansas Supreme Court

154 S.W. 518

107 Ark. 202

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

Supreme Court of Arkansas

February 24, 1913

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Jackson Circuit Court; R. E. Jeffery, Judge; reversed.

STATEMENT BY THE COURT.

Appellee brought suit for damages for personal injuries, alleged to have been caused by the negligence of the railroad company in running him down and striking him with one of its trains while he was attempting to remove a speeder from the track and after discovering his perilous position.

The answer denied any negligence on the part of the railroad company, plead assumption of risk and contributory negligence of appellee and also set up a settlement and release of the company from liability, executed by appellee for a stated consideration.

Appellee denied that he settled or compromised the matter complained of in the suit, as alleged, that he was paid $ 45 in consideration thereof and that he executed a release to appellant, discharging it from further liability thereon; alleging further that if appellant had a release it was obtained by fraud and misrepresentation of the facts. That he was suffering greatly from the injury and was greatly impaired in mind and body and could neither read nor write and that appellant's agents and servants "falsely represented to him that he should retain his employment in the position of section foreman with the company and by such false representation, which was relied upon by him, induced him to execute some paper, the contents of which were unknown to him, but was also represented to him to be an agreement further to employ him in consideration for his refraining to make claim for his injury."

That appellant knew such representations to be false and that plaintiff believed them to be true and acted under such belief. That if he signed the purported release, his consent was obtained through fraud and misrepresentation, avoiding same.

Appellee was twenty-seven years old, had been railroading about a year at the time of the injury, and was section foreman of section number seven on appellant's railroad at Olyphant. He had been section foreman about eight weeks at the time of the injury, and related the occurrence as follows: On that morning he had gone on a speeder with Ed Riley over his entire section to the yard limits at Newport. They had tightened some bolts there and were returning; all the regular passenger trains due to go south until late in the evening had passed; didn't know whether the regular freight trains had or not; couldn't tell what was in the yards at Newport from where he stopped. When he started back to Olyphant and reached the south end of the river bridge he stopped and listened but didn't hear any trains, went on around the point of the curve and stopped and listened and didn't hear any trains, ran about half or a third of the way around the curve and stopped again and listened and heard nothing, then moved on around the curve probably half the distance where he stopped again and didn't hear or see any trains, and then moved on two or three telephone poles when we saw the train. Ed Riley saw it first and says: "Will, there is a train right behind us." I reached down and threw the brake on and stopped as quick as I could without throwing the wheel off; I looked back over my shoulder and saw the train, saw the engineer standing up in the cab looking ahead; I stopped the car as soon as possible, got the pick and laid it down, stepped off the end of the ties right by the side of the track and stepped back on the end of the ties, picked up my end of the car and Ed Riley picked up his end, and we started off with it; this little wheel caught on the rail. There were a lot of tools in the car, which made it heavy in the center, and which made the little wheel drop down and it looked like the engineer was stopping. I thinks to myself, if I leave that on there it is liable to cause the death of several people; and I think I can get it off; slide it off. I reached up and was stooping over, lifting on the axle of the little wheel, and while I was doing that the cow catcher struck the little wheel and struck me, and I have been injured ever since. When I got off, Ed Riley got hold of the front wheel on my right hand side and I got hold of the rear of the speeder, and we both lifted on that side until we got it clear of the track; that took us about four feet or a little more from the outside rail; if I had remained where I set the end of the car down, the engine would not have struck me.

Q. Why go back?

A. Simply because I knew if I didn't take that wheel off it was liable to cause a wreck and kill or injure several people. This was a passenger train and the wheel was right jam against the rail on the inside of the track; the wheel was on the east side of the west rail. There is timber all along there and a man on a speeder can not see more than two telephone poles behind him. This is a straight track down there a little ways to the curve. We were struck along about mile post 265 or 266.

Appellee stated that he didn't know anything after he was struck until late that night when consciousness returned to him in St. Vincent's hospital in Little Rock. He suffered much pain and for about three weeks there was a sunk-in and blood-shotten place in his back; that he passed some blood in his urine for two weeks.

Ed Riley stated that he was with appellee on the speeder, and after the bridge watchman told them the train was four hours late, they went on down to mile post No. 266, where there was a bad large curve this side of it extending about thirty telephone poles; there were a lot of saplings grown up there to the edge of the dump. That they listened upon reaching the head of the curve about five minutes and were sitting facing each other on the speeder, appellee being on the back and looking ahead and witness on the front end. He also had turned his head and was looking ahead, expecting a train from the south; they stopped again half way around the curve and then ran on a little way and witness looked back north and "saw the train right at us." Appellee stopped the speeder as quick as he could, grabbing the brakes, and we started to take it off. He threw the back end down at the edge of the track and the little wheel hung. We got it all off but the little end of the wheel and he went around to get it off when the train hit him. He was stooping down to get the little wheel over the rail, this wheel being hung on the inside of the rail. I was helping him to get it off at the time he was struck; he had stooped down to pick up the wheel; the train knocked him down by the car and knocked me down the dump. I got up and got back to him and got hold of him. After the train got by it stopped and backed up and took us on to Bald Knob. He was hurt in the back and was unconscious. They took him to the doctor's office, reached there about 12:30. The doctor dressed his wound. It looked like blood was running out where the pilot hit him about the region of the kidneys, just above the hip bone. They carried him from there to the infirmary at Little Rock. Witness first saw the train and said, "There comes a train." The engine was about two telephone poles, or a little further distant. He didn't see any of the train crew at the time; when he had the speeder off the track, all but the wheel, and Mr. Morgan was trying to get that off, the engine was not over a rail and a half distant from him.

If witness had kept his natural position on the speeder, he would have been looking south as the speeder was going north. He did not know how far it was from the curve to the point where the speeder was struck but there was a little straight track north of the speeder where it was taken off the track. He heard no alarm sounded, but saw the train. He told Morgan as soon as he saw it and they got the speeder off, all but the little wheel. The speeder has two large wheels that run on the same rail while the little wheel goes out on the other rail, the small wheel being the guide wheel; the heavy part of the speeder is built over the two large wheels and the little wheel running on the other rail is stretched out from the speeder by two rods; when we got the two wheels and the body of the speeder off, we had the most of the weight of the speeder off the track. Got the speeder clear of the track, with the exception of the little wheel, which hung on that rail. When we got the speeder off, all except the little wheel, Mr. Morgan was clear of the track, and of the train and saw the train before he went back; he saw the train coming when he started back. When he looked back he got clear of the track, and after that' stepped back and got hold of the little wheel, but he did not step over the rail then. It was a passenger train, said to be the third section of No. 5. After the train struck Mr. Morgan it passed by us about three car lengths. It never touched me at all.

Con Riley, the engineer, said when there are three different sections of a running train, there is a green flag in the day time and a green light at night carried by the preceding sections that gives notice of the following section; when I came around the curve on the north end of the White river bridge I saw an object on the track about a mile ahead of me and thought it was section men working on the track. When I got a little bit closer I blew four blasts of the whistle, thinking they would get off, and went a little bit farther and blew a crossing whistle; when in about 600 or 700 feet from them I began sounding danger whistle and also shut off steam and applied brakes to stop train. When I commenced sounding danger whistle they saw...