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

• Decision Date: 15 May 1911
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BROWN
• Court: Arkansas Supreme Court

140 S.W. 279

100 Ark. 107

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

Supreme Court of Arkansas

May 15, 1911

[Copyrighted Material Omitted]

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed on remittitur.

STATEMENT BY THE COURT.

This suit was brought by appellee for personal injuries alleged to have been caused by the negligence of the railway company. He was a brakeman, 22 years of age, in the service of the railway company, and injured while making a flying switch at Ozark. It was his duty to uncouple the car which the engine was pulling coupled to the pilot or cow catcher, and ride it down and couple it to the train while the engine went on down another track. In doing this, he stood on the pilot or cow catcher holding to the rod which crosses the front of the pilot. He waited until the engineer on his signal "gave him the slack" and then pulled the pin. The pin is pulled by means of a lever attached to one end of the car--a large rod running across the end of it, turned downward at the end, making a handle, and to this rod is attached a chain fastened to the pin, and by lifting the handle of the lever upward the pin is drawn and the uncoupling made. The pin sometimes catches, and is hard to pull, and several efforts are required to get it. The signals are given by the use of a lantern by the brakeman, one for the slack that the pin may be loosened and more easily lifted, and the other, after it has been pulled, that the engineer may increase the speed of the engine.

On the night of the injury Brown gave the engineer the signal for slack, which was obeyed, and the engine checked, and he attempted to pull the pin by using the lever, and the first time failed to get it. On the second effort he succeeded, and stated that the engineer, without any signal from him to proceed, suddenly shot the engine forward from under him throwing him on his face on the track in front of the car. The car passed over him, some portion of it striking him and fracturing the spine or breaking his back.

The engineer testified that the flying switch was made in the usual manner, that he gave Brown the slack upon his signal and did not start the engine forward nor increase its speed thereafter until Brown gave him the signal to proceed; that he then increased the speed of the engine, as was usual and customary, to about 10 miles an hour, which was necessary to outrun the car and get on a different track, that it might pass.

There was testimony tending to show that, in making the flying switch, the brakeman could stand upon the corner of the car or the pilot of the engine as Brown did in this instance, upon the place provided there for riding, and that the advantage of this over the other place was that he could give the signals directly to the engineer.

The other place was upon the corner of the car to be uncoupled, with a foot in the stirrup and a handhold of the ladder, the lever being operated with the foot and the pin raised by it. The advantage of this position left the brakeman on the car which he had to ride after the uncoupling was made, and prevented the necessity of getting off the engine and on to the moving car, and also, in case of accident or falling, left him outside the rails from under the cars, the disadvantage being that he must give the signals to the fireman to be communicated to the engineer.

It was shown that both places for riding were used by brakemen in the making of such switches, some preferring one and some the other, and the engineer thought that the place on the foot board of the engine was the better, since it permitted the brakeman to signal directly to the engineer who controlled the movement of the train.

No one saw Brown when he fell or was thrown from the engine and injured. The brakeman who was throwing the switch later saw him between the rails, and thought he was cut all to pieces, and could not go to him, but notified those on the engine who went immediately.

Parker, the engineer, said: "I just grabbed my torch and jumped out and went up there. The first thing I asked him was 'how it happened.' He told me his foot slipped. I do not know whether Sullivan heard it or not. After he came up, I do not think we asked him how it occurred."

Sullivan, the fireman testified that Brown said "he didn't know how it happened. He made this statement at the time I went back and found him lying on the track. I didn't ask him; the engineer asked him. The engineer asked him how it happened. I heard him say he didn't know how it happened. He was suffering. He asked me to pinch his leg and see if it was there. He thought his legs were off. He told us to go away. We asked him about it, and he didn't know how it happened. He could not raise up and talk. He was lying then with his head lying on the rail."

He was immediately taken to the depot on a stretcher, and a doctor procured as quickly as possible to attend him. He was brought to the hospital at Little Rock, and it was discovered that his back was broken or the vertebra slipped and pressing on the spinal cord, which caused paralysis of the body below the point of the injury. "So far as motion and sensation are concerned, the lower part of his body is dead. He has no more control of it than if it were not his,"--as stated by one of the physicians. He was in the hospital about forty days, an operation was performed, a drainage tube being inserted in his back, and, while he was there, great bed sores developed on his hips and knees and parts of his body upon which he was compelled to lie most, which finally became so bad, after his removal to his father's home, that the bones were exposed, the doctors saying that the joint oil ran out of his knees, and they thought at the time that his legs would slough off at the knees. He had no control of his bowels and urinary organs, which at times discharged almost constantly, rendering him most offensive and loathsome, was suffering great pain, and it required some one constantly to attend him and took two people always to dress his sores and wounds, the physician and one other, and sometimes three. He was kept constantly under the influence of an opiate to quiet him, and his body above the injury was normal, so far as it could be, and still be connected with that paralyzed and dead below. His mind continued unclouded and active, and was so at the time of the trial. The doctors who testified said that the injury was necessarily fatal, but that, having lived as long as he did after it, he might live anywhere from one to seven years.

There was testimony tending to show that he had expended $ 400 or was liable for that amount for the attendance of physicians, and about the same amount for medicines, bandages, absorbent cotton, etc.

Some evidence was attempted to be introduced tending to show negligence of the attendants at the hospital in treatment of him, resulting in producing the sores, but this evidence was afterwards withdrawn. The remarks of counsel in the closing argument were also objected to and modified to some extent but not withdrawn.

The court instructed the jury, giving certain instructions over appellant's objections and refusing to give several for it which will be noticed in the opinion, along with other testimony regarded necessary to be stated. The jury returned a verdict for $ 50,000 damages, and from the judgment thereon this appeal comes.

Judgment reversed and cause remanded.

W. E. Hemingway, E. B. Kinsworthy, W. V. Tompkins, Bridges, Wooldridge & Gantt and James H. Stevenson, for appellant.

1. It was error to permit A. H. Brown, the father of plaintiff, to testify that plaintiff was not properly cared for and treated at the hospital of defendant, at Little Rock. The circumstances under which the testimony came before the jury, its prejudicial character, the obvious determination of plaintiff's counsel to impress on the minds of the jury that defendant's hospital attendants neglected him, and the tardiness of the court in suppressing said attempts, separate this from the ordinary case where testimony is offered and withdrawn or excluded by direction of the court. The prejudicial effect of this testimony was not removed by the court's order withdrawing it from the jury's consideration, as is evidenced by the verdict. Elliott on Appellate Procedure, § § 700, 702; 60 Ark. 76, 88; 180 U.S. 552; 100 Ill.App. 382; 110 Id. 23, 26; 131 Id. 105; 83 Miss, 519; 35 So. 873; 65 Ark. 119; 61 Ark. 137; 131 N.C. 199; 42 S.E. 584; 139 Ill.App. 412.

2. The first instruction given at plaintiff's request is erroneous in that it ignores the issue as to whether, under the evidence, the plaintiff was negligent in taking his station on the pilot instead of upon the car. It is not contended that, as a matter of law, it was negligence for the plaintiff to choose the more dangerous place in which to ride, but that it was a question for the jury to determine whether or not, under all the circumstances, it constituted an act of negligence for him to stand on the pilot, instead of getting upon the car, from which latter place, the evidence shows, he could have done his work in safety. 90 Ark. 543; 1 White on Personal Injuries, § 400; 5 Thompson on Negligence, § 5614; Id. § § 5590, 5591, 5685; 86 Ark. 65; 223 Pa.St. 482; 72 A. 811; 16 Am. & Eng. Ann. Cases, 27; 175 Mass. 466; 56 N.E. 710; 106 Iowa 253; 76 N.W. 670; 57 Kan. 719; 48 P. 12; 99 P. 224; 144 F. 668; 234 Ill. 272; 44 Col. 236; 99 P. 63; 118 S.W. 1113; 121 La. 543; 46 So. 621; 95 P. 193; 150 N.C. 400; 64 S.E. 194.

An instruction which assumes to enumerate all the elements of liability and all defenses, but which, while directing a verdict if the enumerated issues are found for the plaintiff omits a defense upon which there is...