St. Louis & S. F. R. Co. v. Hill

Decision Date14 May 1906
Citation94 S.W. 914
PartiesST. LOUIS & S. F. R. CO. v. HILL.
CourtArkansas Supreme Court

Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.

Action by Z. T. Hill, administrator of Wallace H. Hill, against the St. Louis & San Francisco Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

L. F. Parker and B. R. Davidson, for appellant. Sam Chew and Brizzolara & Fitzhugh, for appellee.

BATTLE, J.

Wallace H. Hill was a brakeman on the cars of the St. Louis & San Francisco Railroad Company, and was killed on the 9th day of September, 1903, while engaged in that capacity. Z. T. Hill, his father, was appointed his administrator. As such administrator he brought this action against the railroad company for damages sustained by him as the next kin of the deceased. He alleged in his complaint that W. H. Hill was a brakeman on a train of the defendant, and while he was on the train and it was running on a certain bridge of the railroad company the bridge gave way, and wrecked the train, and inflicted upon Hill, the brakeman, injuries which caused his death; and that the bridge was unsafe, and fell down and caused the injury complained of, because the defendant carelessly and negligently allowed the waters passing under it to undermine the sills upon which the bents supporting it rested.

The defendant denied the allegations of the complaint. A jury was impaneled to try the issues, and upon a trial returned a verdict in favor of the plaintiff for $1,250.

The bridge mentioned in the complaint was over a stream known as Crowder creek and was a part of the railroad of the defendant. In September, 1903, a freight train of the company was derailed, and while it was off the track it ran on the bridge, and caused it to fall, and wreck the train. W. H. Hill, a brakeman, then in the service of the company, was killed in the wreck. Before and about the time of the accident, the bridge was out of line. A cavity about four inches deep and seven or eight inches wide was washed under one of its sills. Two of its bents had slipped, one about 6 inches and the other about 12 inches, and both appeared to be "leaning down the creek." The track, being out of line, had been taken up, aligned, and respiked, which did not affect the security of the bridge, as trains heavier than the one derailed had thereafter passed over it in safety. There was nothing to indicate that it would have fallen if the cars had remained on the track. Witnesses differ as to where the train first left the track. Some locate it about 150 feet west of the bridge, and another at the west edge of the creek, which we understand to be on the bridge. There was evidence tending to prove that the derailment was caused by the rapid backward movement of the train.

The court, over the objections of the defendant, instructed the jury in part as follows:

"(8) If the bridge under the track at the place where the wreck occurred in its supports was in a defective and unsafe condition for the passage of trains, and defendant knew this, or by the exercise of ordinary care on its part ought to have known it, and such defective and dangerous condition of the bridge as to its support if such condition existed caused the wreck and the wreck produced injury to, and the death of, W. H. Hill, then defendant is liable for such injury and death, unless W. H. Hill knew or by the exercise of ordinary care on his part ought necessarily to have known of such defective and unsafe condition if there was such defective and unsafe condition."

"(9) If the condition of the bridge over Crowder creek as to its support was in a defective and unsafe condition, and yet the wreck would have occurred notwithstanding such defective and unsafe condition then the giving away of the bridge if it did give way, and consequent wreck of the train if the giving way of the bridge caused a wreck, cannot in law be said to have caused the injury and death of Hill. But if the bridge, as to its support, was in a defective and unsafe condition, and the tender went off the track before reaching the bridge, and the wreck occurred by reason of said defective and unsafe condition of the bridge in its supports and of the tender being off the track, but would not have occurred but...

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