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

• Decision Date: 25 March 1912
• Citation: 145 S.W. 879,103 Ark. 61
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. OWENS
• Court: Arkansas Supreme Court

145 S.W. 879

103 Ark. 61

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

Supreme Court of Arkansas

March 25, 1912

Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; affirmed.

Judgment affirmed.

W. E Hemingway, Lovick P. Miles and Thos. B. Pryor, for appellant.

1. Between master and servant a prima facie case of negligence is not made by proof of injury. 100 Ark. 467; 79 Ark. 81. In the absence of a statute, there is no presumption of negligence. 44 Ark. 527; 46 Id. 555; 51 Id 467; 179 U.S. 658. The doctrine of res ipsa loquitur does not apply.

2. There is no proof as to how the accident happened. Verdicts can not be found on conjecture. There must be proof. 67 C. C A. 421; 132 F. 593; 139 Id. 737; 152 Id. 419; 98 C. C. A. 281; 101 Wis. 371; 115 S.W. 890; 133 N.Y. 659; 179 U.S. 658; 49 S.E. 508.

3. Deceased assumed the risk. 77 Ark. 376; 56 Id. 206; 170 U.S. 665; 191 Id. 64; 196 Id. 57; 91 Me. 268; 165 Mass. 71.

4. Instruction No. 1 was error.

J. H. Harrod, for appellee.

OPINION

MCCULLOCH, C. J.

Plaintiff 's intestate, Mack Apple, while working for defendant as brakeman on a freight train, was run over by his train and killed, and this action is for the benefit of the widow and children to recover damages sustained by them on account of the death of said intestate. Apple was brakeman on a northbound freight train, and was killed about noon on October 11, 1910, between the stations of Cabot and Austin, which are about three miles apart.

Negligence of the defendant is charged in raising an embankment of dirt so near the track that deceased, while performing his duty on a passing train, came in contact with the embankment and was dragged from the train and run over and killed. The defendant denied the charge of negligence, and pleaded contributory negligence and assumption of risk on the part of said decedent.

The case was tried before a jury, and the trial resulted in a verdict and judgment in favor of the plaintiff, assessing damages in the sum of $ 3,000.

The principal contention is that the evidence was not sufficient to sustain the verdict, and it is earnestly insisted that for this reason the judgment should be reversed, and the cause dismissed. No one saw Apple killed, and the manner in which he came to fall under the train is established only by circumstantial evidence. Along the track, at the place where plaintiff's intestate was killed, defendant, in preparation to double-track the road, had hauled dirt and dumped it along the main track, raising an embankment to a considerable height, which began at the rail and sloped upward from the track. It consisted of soft fresh clay, and contained large lumps or clods. The last time Apple was noticed by any person was when the train passed Cabot. The engineer then saw him standing on the top of the tenth or eleventh car back from the engine. He was the head brakeman and it was his duty, when the train approached a station, to go forward to the engine, to cut off the engine and do the switching. In addition to this, it was his duty, as of the other brakeman, to watch his train while in motion to see that there was nothing down or out of place and to watch for hot boxes. Shortly before reaching Cabot a hot box had been discovered in the trucks of the eighth car from the engine. Apple was not seen to fall from the train, and was not missed until the train stopped at Austin, when, his absence being discovered, a search was made, and a portion of his body was found along the track, and an impression in the embankment showed where his side. or hip had struck into the soft earth, making an impression several inches deep. His hat band, with his badge as brakeman, was found near this impression, and thirty or forty feet north of the impression in the embankment was found the first evidence of his being run over. Blood and hair were found on the rails at that point, and thence along the track, toward the north, parts of his body were found, one of his ears being found about half a mile north of there. An examination of the train was made, and the first blood was found on the wheels of the rear truck on the twelfth car from the engine. Both sides introduced witnesses who testified that they had made measurements of the distance from the impression in the embankment down to the rail and over to the edge of the car. Plaintiff and his witnesses made measurements immediately after the killing; that is to say, within two or three days. The measurements made by the defendant's witnesses were made about two months after the killing, but the impression in the embankment was still discoverable. There is a sharp conflict in the testimony as to these measurements, and upon the question as to whether or not it was possible for a man's body, while he was swinging from the side of a car, to come in contact with the embankment. The evidence adduced by the plaintiff was to the effect that there was a space of only eighteen inches between the embankment, at the point where the impression in it was made, and the side of an average box car passing along by it. A number of witnesses testified that the body of a man, swinging from the side of a car, would come in contact with the embankment. The evidence adduced by the defendant tended to show that there was a space of about five feet between the embankment, at the place where the impression was found, and the side of a passing box car. Many of the witnesses testified that it would be impossible for a man's body to strike the embankment. Some of the witnesses made demonstration by swinging from the side of a passing train. This was tried by three brakemen, one swinging from a flat car, one from an ordinary box car and one from an extra wide furniture car, and they all testified that they did not touch the embankment while passing except that the man on the extra wide furniture car testified that he barely touched the embankment, but not sufficiently to be calculated to drag a man off or to cause him to lose his hold. One of the trainmen testified that the train was going at an ordinary speed between Cabot and Austin, and that there was nothing unusual occurred on the way; that there was no indication of any disturbance in the train, derailment or accident of any kind, and that the train just went along as usual. It may be taken as established by the evidence that Apple struck the embankment,...