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

• Decision Date: 15 February 1909
• Citation: 116 S.W. 678,89 Ark. 326
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. FREEMAN
• Court: Arkansas Supreme Court

116 S.W. 678

89 Ark. 326

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. FREEMAN

Supreme Court of Arkansas

February 15, 1909

Appeal from Marion Circuit Court; Brice B. Hudgins, Judge; affirmed on remittitur.

Judgment affirmed.

T. M Mehaffy and E. B. Kinsworthy, for appellant.

1. The verdict is not sustained by the evidence, and is contrary to the physical facts. In view of the condition of the switch stand, switch points, frogs, etc., after the wreck, the verdict is so palpably erroneous as to shock the sense of justice. 70 Ark. 385.

2. If there was a defect in the engine, and if the flanges were too short, it was such a defect as the deceased knew or by the exercise of ordinary care could have known of. The risk was assumed.

3. Evidence of the condition of the switch several months prior to the accident was too remote, was incompetent and prejudicial. 48 Ark. 460, 473; 169 Mo. 409; 87 F. 540; 20 R I. 210; 88 Mo. 348; 28 S.W. 908. The question asked by the trial judge of the witness Elliott, "Is he to put no faith in the inspection of the round house?" was prejudicial, being in effect an expression of opinion that the engineer had the right to rely on the round house inspection.

4. There being two conflicting theories as to the cause of the wreck, appellant was entitled to have its theory presented in the instructions 16 and 17. They presented, a phase of the case not covered by any other instructions, and should have given. If they had been given, appellee could not complain because they were more favorable to her than the evidence warranted. 57 Ark. 402; 63 Ark. 82.

5. The verdict is manifestly excessive. 60 Ark. 558; 57 Ark. 384; 76 Ark. 377.

Crump Mitchell & Trimble, Jones & Seawel, and Hamlin & Seawel, for appellee.

1. The verdict is supported by the evidence, in harmony with the physical facts, and is conclusive. 70 Ark. 512; 66 Ark. 53; 76 Ark. 115; 74 Ark. 478; 34 Ark. 632; 51 Ark. 467; 48 Ark. 495; 87 Ark. 443; 83 Mo. 678; 8 Mo.App. 488; 1 Shear. & Redf. on Neg. 57, 58; 57 Wis. 156; 46 Mo.App. 266; 73 Mo. 219; 23 Tex. Civ. App. 160, 55 S.W. 772; 77 Ark. 1; 75 Ark. 479; Id. 61.

2. It was not pleaded that deceased was guilty of contributory negligence, and none is shown; and, on the question of assumption of risk, the servant does not assume the risk of injury growing out of the failure of the master to provide a safe working place and safe appliances. 112 S.W. 988; Labatt, Master & Servant, 229 and 417; 91 Ala. 548; 94 Ala. 545; 97 Ala. 211; 67 Hun 130, 22 N.Y.S. 48; 60 N.Y.S. 422; 35 S.W. 879; 57 S.W. 693; 87 Ark. 443.

3. Evidence of the condition of the switch prior to the wreck was competent. Evidence was introduced to show the condition of the switch from May, 1907, up to a few days before the wreck. The only object in excluding evidence of the condition of things remote from the injury is that it would not throw light on the condition that existed at the time of the injury. 48 Ark. 460; 91 Mo. 509-517; 118 Mo. 268; 52 Minn. 364; 8 Enc. of Ev. 908; 131 Mich. 442; 96 Ia. 314; 101 Ala. 488. Evidence that the switch was defective and unlocked from May until June, 1907, and at sundry dates thereafter up to the 28th day of November, 1907, was admitted without objection, and appellant cannot now complain; therefore, more remote evidence having been admitted without objection, the testimony of certain witnesses on the same point directed to a later date, even if erroneous, was harmless. 17 Cyc. 61; 112 Mich. 307; 58 Mo.App. 68; 61 Mo.App. 273. Admission of evidence as to the condition of the lock, even if erroneous, was cured by instructions of the court whereby the liability of the appellant was not predicated upon the condition of the lock, but upon the defective condition of the switch-point, main-rail or frog. 85 Ark. 111; 93 Mo. 400-5.

4. There was not, and there could not have been, any error in the question by the court. There was no answer to it. Not only was the question harmless, and, if asked, was no expression of opinion, but, it is the law that an employee has the right to presume that his employer has done his duty in the matter of furnishing safety appliances, and in inspecting same.

5. There was no error in refusing the 16th and 17th instructions requested by appellant. The instructions given covered every phase of the case, and the court was under no obligation under the circumstances to give these particular instructions.

6. The judgment should be affirmed, even if the switch had been thrown by a trespasser. 71 Ill.App. 147; 61 Mo.App. 680.

7. The verdict is not excessive. Deceased was only twenty-four years of age, of excellent habits, sober, economical, industrious, receiving at the time of his death $ 135.00 per month. It is shown in the record that he turned over all his wages to his wife [appellee], and that it required about one-third of his wages to pay expenses, and the balance belonged to her. 76 Ark. 233; 77 Ark. 1; 87 Ark. 443.

OPINION

MCCULLOCH, C. J.

J. C. Freeman was employed by the defendant, St. Louis, Iron Mountain & Southern Railway Company, as an engineer, and was killed in a wreck of his train on December 8, 1907. His widow, as administratrix of the estate, sues to recover damages for the benefit of the next of kin on account of his death. She recovered judgment for $ 20,000 in the circuit court of Boone County, and defendant appeals to this court.

The wreck occurred at a spur-track near the station of Myrtle, Arkansas, in Boone County, about ten o'clock at night. The train was north-bound, and was derailed. The contention on the part of the plaintiff is that there was a defect in the point of the switch rail which caused the engine to "split" the switch and leave the rails. On the other hand, it is contended in behalf of the defendant that the switch was thrown by some one for whom the company was not responsible, and that the engine turned in on the spur, and was derailed and turned over because of a weak place in the spur track.

Negligence of the company is set forth in the complaint on account of having permitted the switch point or rail to become defective so that it allowed a space of from one-fourth to one-half of an inch between it and the main rail, and also to become worn or crumbled off at the point; also that the flange on one of the drive wheels of the engine had become worn; and that, by reason of this negligence in one or both of the particulars named, the wheels of the engine mounted the switch rail or passed through the crevice between the two rails so as to cause the engine to split the switch.

The case was submitted to the jury on these questions of alleged negligence, and the principal contention of the defendant here is that the evidence was insufficient to support the verdict. It is contended very earnestly that certain physical facts shown to be in existence were inconsistent with the plaintiff's theory of the case, and that the verdict should be set aside on that account. After a careful consideration of the evidence, we are of the opinion that there was sufficient evidence to warrant the finding of negligence in the particulars named.

The evidence tended to show, from the testimony of several witnesses, that for several months before the accident, and continuing down to within a few days of it, the point of the switch rail was in the condition contended for by plaintiff; that is to say, it was worn and crumbled off at the point, so that there was a space of from a quarter to a half-inch between it and the main rail when the switch was closed. The evidence also tended to show that the flange on one of the drive wheels of the engine was worn so that it was only about one inch in thickness. The conclusion is warranted, from the conditions which were found to exist immediately after the wreck, that the engine and train did not pass into the spur, but that it became derailed, or "split the switch," as the witnesses term it, and was turned over. Immediately after the wreck occurred, the engine was found lying on its side between the rails of the spur track. There was evidence tending to show that the engine, after being derailed, went for some distance along the main track and then plowed its way between the two tracks, and was turned over; and remained on the spur track. These conditions showed that the switch was not open, as contended for by the defendant, and that the engine did not pass into the spur and become derailed by reason of the weak foundation of the spur track.

There are, on the other hand, certain conditions found to exist immediately afterwards, which tended to show that it was improbable that the switch was closed at the time. But we can not say that these circumstances and conditions were conclusive of that fact. The engine was turned over, and several of the cars were wrecked; and, while all of the conditions found are not explicable on the theory of the plaintiff's evidence that the engine and cars split the switch, we cannot say that they are so inconsistent with the plaintiff's theory as to render the evidence insufficient to justify the finding of the jury. Upon the whole, we are...