St. Louis & S. F. R. Co. v. Wells
| Decision Date | 08 April 1907 |
| Citation | 101 S.W. 738 |
| Parties | ST. LOUIS & S. F. R. CO. v. WELLS. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.
Action by Marion Wells against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
B. R. Davidson, for appellant. Sam R. Chew, for appellee.
The plaintiff, Marion Wells, sued the railroad company to recover damages for injuries received while in its service. He was fireman on a locomotive, and while at work was thrown from it by reason of the breaking of the drawbar which coupled the engine and tender together. He was standing over the coupling and was engaged in shaking the grate of the engine when the coupling or drawbar broke, allowing the engine to suddenly draw away from the tender, and he fell to the ground and was seriously hurt. The drawbar was made of iron, and was about 3 feet long, 4 or 5 inches wide, and 2½ inches thick.
Negligence of the defendant is charged in allowing the drawbar to become weak and defective and in permitting its use while in that condition. Appellant contends that the evidence is insufficient to warrant a finding by the jury that there was any negligence in furnishing a defective drawbar or in failing to discover defects therein. The plaintiff and several other witnesses testified that immediately after the accident they examined the broken drawbar, and that where it broke apart there was an old break or crack, about an inch and a fourth in depth, clear across the bottom of the bar. They said that they could discern the difference between the old and the new break; that the old part of the break was "black, rusty, and scaly looking," and looked like it had been there a good while.
The defendant introduced quite a number of its employés, engineers, machinists, and inspectors, all of whom gave testimony to the effect that the engine in all its parts, including this drawbar, had been carefully inspected before the accident, and that no defect in it had been discovered. One of them, who showed expert knowledge of the subject, testified that, if there had been a flaw in the bar a fourth of an inch or more up through it from the bottom, it could have been discovered by a careful inspection. Now, it is entirely beyond dispute that the testimony of the plaintiff and the other witnesses he introduced was sufficient to establish the fact that there was a defect in the bar at the time it broke and caused the accident. The only question is whether the evidence showed a defect which the defendant could, by proper inspection, have discovered, for under no other circumstances could it be held responsible for the injury which resulted. Negligence of the company cannot be inferred merely from the occurrence of the accident. That must be proved, and the burden of establishing it is on the party who alleges it. St. L., I. M. & Sou. Ry. Co. v. Rice, 51 Ark. 467, 11 S. W. 699, 4 L. R. A. 173; Fordyce v. Key, 74 Ark. 19, 84 S. W. 797; St. L., I. M. & Sou. Ry. Co. v. Andrews, 78 Ark. ___, 96 S. W. 183. The testimony of some of the witnesses shows that the break or crack in...
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