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

• Decision Date: 25 October 1909
• Citation: 122 S.W. 116,92 Ark. 102
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. CORMAN
• Court: Arkansas Supreme Court

122 S.W. 116

92 Ark. 102

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

Supreme Court of Arkansas

October 25, 1909

Appeal from Franklin Circuit Court, Ozark District; Jeptha H. Evans Judge; affirmed.

STATEMENT BY THE COURT.

Murray L. Corman was a brakeman in the employ of the defendant railway company, and was killed by the derailment of an engine on which he was riding, in the discharge of his duties, on August 9, 1907, at Wagoner, I. T. The engine was pulling a local freight train, and was approaching Wagoner and was within the yard limits. Corman was on the running board of the engine, preparing to go down on the pilot for the purpose of operating a switch for the train to go in upon a siding. There was another track used as a passing and storage track--principally the latter--and a few minutes before Corman's engine reached the north end of the track some ballast cars standing on this track were struck and put in motion by other cars handled by the crew of another train. These cars rolled down the descending grade of the storage track to the end and out upon the main track, and collided with Corman's engine, while he was on it, overturning the engine and crushing him to death.

This passing and storage track was about 2,500 feet long, and had a decided grade in each direction, the summit of the grade being about in the middle. The grade each way was steep enough that cars when once put in motion would roll to the end. There was no derailing device of any kind at the end of this track to prevent cars from rolling upon the main track. There were fifteen or twenty or twenty-five of the ballast cars standing oh the storage track, and the brakes on them were not in working order. When they were put in motion, a brakeman who was a member of the other train crew mounted the string of cars and tried to put on brakes so as to stop them but on account of the brakes not working he failed to accomplish this. It is shown that in loading the ballast cars with a steam shovel gravel would get in the ratchets of the brakes, thereby preventing their use. It is also shown that the brakes on some of them were out of working order in other respects.

The present action was instituted in the circuit court of Crawford County by Emma Corman, the widow, and Murray Corman an infant child and sole heir-at-law of Murray L. Corman, deceased, to recover damages sustained by them as such widow and next of kin on account of the death of said decedent. There was no administration upon the estate.

The complaint sets forth two charges of negligence against the defendant which are alleged to have been the proximate cause of Corman's death: one, that the defendant was guilty of negligence in failing to have a derailing device at the end of the storage track so as to prevent cars from rolling down the grade from that track upon the main track; and the other, that the defendant was negligent in permitting cars on which the brakes were out of repair to be left on the storage track.

The defendant in its answer denied the charges of negligence, and pleaded that Corman was guilty of contributory negligence, and also that he had assumed the risk.

The jury returned a verdict in favor of the plaintiff, assessing the damages at $ 10,000. Judgment was rendered accordingly, and the defendant appealed. Other facts tending to explain the points at issue will be stated in the opinion.

Judgment affirmed.

Lovick P. Miles, for appellant.

1. Under the evidence, and the rule in 79 Ark. 62, this action could not be maintained in the absence of an administration or the joinder of all persons related who might have a cause of action 76 Ark. 555; 51 Id. 509.

2. No negligence was shown upon which, under the law of the Indian Territory, a recovery could be sustained, and instructions 3 and 6 asked by defendant should have been given. 87 Ark. 471; 77 Id. 109; Ib. 261; 85 Ark. 532; 79 Id. 225. There was no question of the master's negligence to be submitted to the jury.

3. The risk of the absence of a derailing device was assumed by defendant. 82 Ark. 11; 54 Id. 389; 48 Id. 333; 60 Id. 438; 65 Id. 98; 77 Id. 367, 458; 1 Labatt, Master & Serv., § 388-404; Dresser on Employers' Liability, §§ 92, 95; 77 Ill. 365; 168 Mass. 517; 161 Mass. 153; 108 Mich. 690; 97 Id. 265; 63 Iowa 562; 132 N.Y. 228.

4. It was the omission of fellow-servants which caused the injury. 42 Ark. 417; 82 Id. 334.

Robert J. White, for appellee.

1. The father and mother were not necessary parties, and should not have been plaintiffs. Kirby's Dig., §§ 6289, 6290. The widow and sole heirs were the only necessary parties. Id. § 2636; 10 N.E. 75; 79 Ark. 65; 95 N.Y. 17-24; 47 Ark. 1; 28 W.Va. 412-465; 39 Oh. St. 368-374; 5 Cal. 63; 56 N.J.L. 309; 28 How. Pr. (N. Y.) 417; 132 N.C. 115.

2. Negligence was shown, and the fellow-servant rule does not apply to this case. Buswell on Pers. Inj., pp. 314-15; 87 Ark. 219; 79 Id. 437. The duty rests on the master to furnish a safe place to work, and this duty cannot be delegated. 87 Ark. 324; 54 Id. 289; 81 Id. 324; 79 Id. 20; Bish., Non-Cont. Law, §§ 652, 647-657.

3. Deceased did not assume the risk. 82 Ark. 11; 77 Ark. 367; 67 Ark. 217. In this case it was a question for the jury. 87 Ark. 444.

4. On the question of liability for undertaking to require conductors and brakemen to perform non-assignable master's duties, see 67 Ark. 377; Ib. 209; 87 Ark. 321; Ib. 271, 306; 77 Ib. 1; Ib. 367.

OPINION

MCCULLOCH, C. J., (after stating the facts).

It is contended that the plaintiff cannot maintain this action, and that it can be maintained only by an administrator of the decedent's estate. This question was attempted to be raised by a demurrer to the complaint on the alleged ground that the plaintiff was without legal capacity to sue. It was also shown by evidence that the parents of said decedent were living, and the contention is made that they might, as such parents, claim damages by reason of the death of their son, and that the suit should therefore have been brought by an administrator.

The statutes of Arkansas (secs. 6289-6290, Kirby's Digest), embodying the principles of the English statute known as Lord Campbell's Act, were in force in the Indian Territory when the injury in question occurred. One section of this statute reads as follows:

"Every such action shall be brought by, and in the name of, the personal representative of such deceased person, and, if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person. Provided, every such action shall be commenced within two years after the death of such person." (Public Acts, First Session of 51st Congress, p. 94, § 31.)

This statute creates two causes of action--one for the. benefit of the estate, to recover damages which the decedent could have recovered had he survived the accident, and the other for the benefit of the widow and next of kin, for the damages which they sustained by reason of the death. Davis v. Railway Co., 53 Ark. 117. The present action falls within the last-named class. It is a transitory action, and can be maintained in this State, but the rights of the parties must be determined in accordance with the law of the place where the injury occurred. St. Louis, I. M. & S. Ry. Co. v. Haist, 71 Ark. 258, 72 S.W. 893.

Now, the statute provides that, "if there be no personal representatives, then the action may be brought by the heirs at law of such deceased person." Who, then, constitute the heirs at law? The widow is one within the meaning of the statute, for she receives a distributive portion of the recovery. McBride v. Berman, 79 Ark. 62, 94 S.W. 913. The child is the only other heir at law, and by the plain letter of the statute is the only other person who is a necessary party to the action.

Nothing is found in the decision in the case of McBride v. Berman, supra, which militates against this conclusion. The action in that case was instituted by the widow alone, without joining the collateral heirs at law, there being no children of the decedent.

Was the defendant company guilty of negligence in failing to install a derailing device so as to keep the cars from rolling off the storage track, and, if so, did Corman assume the risk of the danger to which he was exposed by reason thereof?

In considering the question of negligence, all the facts must be kept in mind. This was a track used not only for trains to pass, but it was used mainly for the storage of cars. On it a large number of cars were stored daily, and among them was a considerable number of empty ballast cars with brakes out of order. It was the custom to store these cars there, and the ordinary use of them in loading them with dirt and gravel for ballast necessarily put the handbrakes out of service on account of gravel lodging in the ratchets of the brakes. These cars were habitually left on the track in bunches, and on a steep grade which would cause them, when once put in motion, to roll to the end of the storage track and on the main track, unless brakes were put on. The ordinary condition in which the brakes were left made it impossible for cars to be stopped when once put in motion for it appears...