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

• Decision Date: 24 April 1911
• Citation: 137 S.W. 568,99 Ark. 69
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. EVANS
• Court: Arkansas Supreme Court

137 S.W. 568

99 Ark. 69

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

Supreme Court of Arkansas

April 24, 1911

Appeal from Saline Circuit Court; W. H. Evans, Judge; affirmed.

STATEMENT BY THE COURT.

Mrs Mattie Evans as administratrix of the estate of her deceased son, Steve Evans, brought suit against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for the benefit of the estate and next of kin for the death of Steve Evans, which was caused by the wreck of the passenger train of the defendant company. Steve Evans resided with his mother in Pine Bluff, Arkansas, and was 22 years old at the time of his death. On the 18th day of September, 1909, he left home about 11 o'clock P. M. to take the early train for Little Rock to spend the day with a friend. On Sunday night about 9:40 o'clock on September 19, 1909 defendant's passenger train en route from Little Rock to Pine Bluff was wrecked about one and a half miles south of Farrell station. The train was composed of the engine tender, combination baggage and mail car, combination negro coach and white smoker, day coach and sleeping car. There was an embankment six or eight feet high where the wreck occurred. The engine and tender, the mail and baggage coach and the combination negro compartment and white smoker were derailed, and turned over. The day car was partly derailed but remained upright. Steve Evans was found after the wreck lying at the foot of the embankment severely injured, and died next day as a result of his injuries.

James Walker and G. W. Bell, both negroes, testified that they were passengers on the train at the time it was derailed, and were occupying seats in the negro compartment. They occupied separate seats; Walker was riding with his back to the engine and Bell sat with his face toward it. Both say that just before the wreck occurred a young white man came into the coach and walked to the water cooler, which was at the front end of the car on the right of the door, and got a drink of water. They say that their attention was specially directed to him because he was white, and it was unusual for white persons to come into the coach where colored persons were riding. Walker says that after the man got a drink of water he lighted a cigarette, but he does not know where he was just as the wreck occurred. Bell says that it was from three to five minutes from the time he saw the young man go to the water cooler until the train was derailed. He states that while the young man was at the water cooler, some one called out there was going to be a wreck, and he began to look to his own safety, and did not see the young man any more until after the wreck. The deceased, Steve Evans, was found at the foot of the embankment near the front end of the negro coach, and both Walker and Bell saw him and recognized him as the young man they had seen enter the negro coach and go to the water cooler just before the wreck. They both lived at Pine Bluff and say that the young man had a check in his hat just like the one they had. These checks are given passengers when they pay their fares. Walker says that if one had walked out of the negro compartment on the front platform of the car and had been turned squarely to the right and gone down the embankment, he would have come to where Evans was found. Bell says he was five or six feet further forward, and some of the defendant's witnesses place him as from ten feet in front of a line drawn at right angles to the front steps of the negro coach.

Bell, who was a physician, testifies that Evans was groaning when he saw him after the wreck, and that this indicates consciousness. On the next morning his mother saw him, and she testified that he recognized her, and that he appeared to be conscious. On the other hand, the physicians who attended him were introduced by the defendant, and testified that he was unconscious.

The plaintiff also adduced evidence tending to show that decedent was 22 years of age, lived with her and gave her nearly all of his earnings. That he had always done so, and expected to remain with her and help support her. That he was a boiler maker and a young man of good habits and a steady worker. That he was robust and in good health when he was killed. That plaintiff herself was in good health.

Other evidence adduced by plaintiff showed that the train was running very rapidly when it was derailed. That the track was torn up for a considerable distance by the train. That the ties were broken and showed that they were rotten. That there were low points in the rails, and that the flanges on the wheels of the engine were worn, and that this was likely to cause the engine to be derailed. That there was a curve in the track where the derailment occurred.

On the other hand, the evidence for the defendant tended to show that the track at that point was straight and in good condition, that the flanges on the engine wheels were not worn, and that the train was only running at a speed of from 25 to 30 miles an hour when the derailment occurred. The train auditor and porter were in the car for colored passengers when the wreck occurred, according to their testimony. They both say that no white man was in the car, and no one ran out of the front door when the wreck occurred. The porter says he was standing with his back against the door, and no one could have gone out at it. They say they had been out on the platform just before the auditor began taking up fares and requested all persons there to come inside the car. The auditor does not remember taking up the fare of the decedent nor does he remember whether or not he was a passenger on the train. Both he and the negro porter, however, testify positively that he was not in the negro coach when the wreck occurred. The engineer had orders to run slow at the place where the wreck occurred.

Other evidence will be stated or referred to in the opinion.

There was a verdict for the plaintiff, and defendant has duly prosecuted an appeal to this court.

Judgment affirmed.

W. E. Hemingway, E. B. Kinsworthy, H. S. Powell and James H. Stevenson, for appellant.

1. The court erred in admitting evidence of repairs to the engine wheels after the accident. Such evidence was inadmissible, regardless of whether the repairs were made necessary by the conditions existing previous to the accident or by damages by reason of the accident. 78 Ark. 147; 70 Ark. 179, 182; 30 Minn. 468; 89 Ark. 556; 8 Enc. of Ev. 914; 82 Ark. 555.

2. On cross-examination of the witness Hammett, the appellant's attorney, asked him if he ever knew any one who is now dead, and he responded that he had. Thereupon appellee's attorney said, in the presence and hearing of the jury: "I guess he knows lots of people the Iron Mountain killed." This remark was improper. Its tendency and necessary purpose was to prejudice the minds of the jury against appellant and its cause. It was uncalled for, totally outside the evidence, and should have been met by a reprimand. By overruling appellant's objection, the court gave its implied sanction to the remark. 62 Ark. 126; Id. 516; 71 Ark. 415; 70 Ark. 305; 65 Ark. 619; 71 Ark. 427; 63 Ark. 174; 74 Ark. 210; 77 Ark. 238.

3. The court's instruction 4 is erroneous, especially in the use of the phrase "and has no reference to the number of the witnesses." It is true the number of the witnesses is not the controlling factor in weighing evidence which is conflicting; but it is also true that it is a factor which should be regarded for whatever it may be worth in the minds of the jury. 179 Ill. 492, 53 N.E. 1008.

4. The court erred in giving the fifth instruction over appellant's specific objections thereto. Kirby's Dig. §§ 6622 et seq.; 6627, 6628, 6629.

5. The seventh instruction is erroneous because (1) there is no evidence which warrants the hypothesis that the deceased, through fear or apprehension of danger, and in an attempt to escape danger created by the negligence of appellant, attempted to jump off the train. This part of the instruction is too highly argumentative to be a fair instruction, and has the force of an expression of OPINION. (2) There is no evidence on which to base that part of the instruction wherein the court attempts to state the test of contributory negligence under such circumstances of emergency, etc.

5. The sixth instruction is erroneous. There is no evidence in the record of the life expectancy of Mrs. Evans.

6. As a matter of fairness, appellant was as much entitled to have its theory of the case given to the jury as was the appellee. The court therefore erred in refusing the fifth instruction requested by appellant.

7. Appellant's requested instruction 14 should have been given. Where there are ample accommodations in a train of which a passenger does not choose to avail himself, but for his own gratification or through curiosity, etc., he goes into a part of the train where, under the circumstances, he has no business to be, and he is injured while there, and could have avoided injury by staying where he belonged, he cannot recover for the injury. 46 Ark. 528, 535, 536; 67 Ark. 545; 4 Elliott on Railroads, § 1630, § 1630a; 162 F. 665; 3 Hutchinson on Carriers, 1197, 1192; 3 Thomp. Com. on Law of Negligence, 2947; Beach on Contributory Negligence, 149; 117 F. 127, 54 C. C. A. I; 71 Ark. 590; 193 Mass. 453, 455, 79 N.E. 775; 146 Mass. 605, 16 N.E. 466; 12 S.C. 336; 81 Me. 84; 90 Ala. 64; 84 Miss. 502; 156 N.Y. 224; 47 La.Ann. 1671.

8. The verdict is contrary to, and is not sustained by, the evidence or any of it.

T. M. Mehaffy, W. T. Young and A. H. Rowell, for appellee.

1. Appellant's suggestion of error in admitting evidence of repairs to the engine wheels after the accident is not well taken....