St. Louis-San Francisco Railway Co. v. Bishop

• Decision Date: 24 November 1930
• Docket Number: 9
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BISHOP
• Court: Arkansas Supreme Court

33 S.W.2d 383

182 Ark. 763

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BISHOP

No. 9

Supreme Court of Arkansas

November 24, 1930

Appeal from Lawrence Circuit Court, Eastern District; S. M. Bone Judge; affirmed.

Judgment affirmed.

E. T Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.

G. L Grant and Pace & Davis, for appellee.

MEHAFFY J. Mr. Justice SMITH dissents.

OPINION

MEHAFFY, J.

This suit was instituted in the Lawrence County Circuit Court by the appellee, Mrs. Orel Bishop, as administratrix of the estate of B. Bishop, deceased, under the Federal Employers' Liability Act to recover damages for the death of appellee's husband, who was injured and killed about one mile north of Seligman, Missouri, about 12:32 in the morning of July 4, 1928, while in the service of appellant as a brakeman and while in the performance of his duty as such brakeman on one of appellant's freight trains engaged in interstate commerce. The suit was for the loss of contributions and maintenance and for pain and suffering endured by deceased from the time of the accident until his death.

The following facts are undisputed: Deceased, B. Bishop, was 31 years old, physically strong, weighed about 160 pounds, was a careful, good brakeman and a good man. After leaving Butterfield, Bishop, who was riding in the caboose with the conductor and another brakeman, left the caboose when the train got near Seligman, which was the next stop, and started to the head end of the train to help set out some cars. This was in the line of his duty, and he was seen on the third car ahead of the caboose, and when the train got to Seligman Bishop was not seen and the train went on to Rogers, Arkansas, where some cars were to be set out, and it was then discovered that Bishop was not on the train. A search was made for him, a report made to the dispatcher at Rogers and the mangled body was afterwards found about a mile from Seligman. The body was on the outside of the east rail, and there were finger prints as if he had been crawling, and there was blood found on the wheel and front part of the fourth car of chat, the fourth car from the caboose. In going from the caboose to the front end of the train, where he had to go in the performance of his duties, he would go over the cars which were filled with chat and go from one car to another. The cars had ladders and grab irons. He was killed by the operation of the train while in the performance of his duty.

There is a conflict in the evidence as to the negligence of the appellant and as to whether the grab iron was defective or bent. Witnesses for appellee testified that the grab iron on the front of the fourth car from the caboose was defective and bent, it was bent towards the car so that there was very little space between the grab iron and the body of the car. Witnesses for appellant testified that the grab iron was not bent or defective. All the witnesses, however, agree that it was at this place where the appellee's witnesses say there was a defective grab iron that Bishop fell from the train and was run over and killed. There is no dispute about the blood being on the wheel just behind this grab iron.

Appellant introduced a blue print and a witness testified that the tracks of Bishop could be seen in the chat going the length of the car, and these tracks are shown on the diagram to start at the corner of the car, getting into the middle and walking in the direction the train was going to the far end of the car, and then the deceased would go over from this car to the next and the tracks were shown on the first, second, third and fourth cars loaded with chat.

The negligence alleged and relied on is that the bottom side grab iron on the east side of the car at the end of the car was defective and bent and that this defect in the grab iron was the cause of the fall, injury and death of deceased. The evidence as to whether there was a bent and defective grab iron is conflicting. A number of witnesses testified that the grab iron was bent in towards the car, bent in the middle, some of them testifying that it was so bent that it did not stand out more than an inch from the body of the car, and others testifying that it was bent in towards the car an inch and a half. Appellant's witness who examined the grab iron testified that the grab iron was not bent and was not defective in any way. As to whether the grab iron was bent and defective was a question for the jury. This court does not pass on the credibility of the witnesses nor the weight to be given to their testimony. This is the province of the jury. The finding of fact on conflicting evidence by a jury will not be disturbed by this court if there is substantial evidence to support the finding. St. L.-S. W. Ry. Co. v. Burford, 180 Ark. 562, 22 S.W.2d 378; Consolidated School Dist. No. 1 v. Fitzgerald, 180 Ark. 840, 23 S.W.2d 263; Walloch v. Heiden, 180 Ark. 844, 22 S.W.2d 1020; Boddy v. Thompson, 179 Ark. 71, 14 S.W.2d 240; Gurdin v. Fisher, 179 Ark. 742, 18 S.W.2d 345. In returning a verdict in favor of appellee, the jury necessarily found that the grab iron was defective. Appellant earnestly insists that the evidence is insufficient to show that the alleged defective grab iron contributed to Bishop's death so as to permit a recovery under the Federal Employers' Liability Act. This is the important question in the case, and one that has given us much concern. The deceased was a young man, 31 years old, in perfect health, was careful and understood his duties, and how to perform them. The presumption is that he was performing his duties in a careful manner, that he was not guilty of negligence. He was swing brakeman and was in the caboose. There was some switching to be done at Seligman and it was the duty of Bishop to go to the front end of the train before the train reached Seligman. He was performing this duty when he was killed. There was no way he could go from the caboose to the front end of the train while the train was moving, except to go over the cars that were loaded with chat. He would necessarily have to pass from one car to the other. The presumption, in the absence of evidence, would be that he did this in the proper manner. There is conflicting evidence as to the proper way to cross from one car to the other and as to how he probably crossed. A blue print is in evidence showing footprints in the chat. It is claimed that these footprints were made by the deceased.

A witness named Erbright, a brakeman who was in the caboose with Bishop, and who saw Bishop when he started to the front end of the train, saw him on the car of chat, testified that after they had done their work at Seligman and had gone on to Rogers, Arkansas, and had looked for Bishop and failed to find him, he, witness, went back to the extreme north end next to the caboose, walked from the rear of the car, crossing from car to car toward the engine, and noticed that there were his tracks going across this chat, this loose gravel. No one except witness Erbright saw Bishop after he left the caboose, and he testifies that Bishop got out of the caboose as they were nearing Seligman, and said he was going to the head end to help set out two cars. Witness saw him on the third car of chat ahead of the caboose. This is the last time he was seen alive. This suit, as contended by appellant, is brought under the Federal Employers' Liability Act, and the questions of negligence and the evidence necessary to establish negligence must be solved according to the rules laid down by the Federal courts. We said in a case recently decided by this court: "This suit is brought under the Federal Employers' Liability Act, and, since this act does not define negligence, the question whether the acts complained of amounted to negligence is to be determined according to the common law and according to the rules prevailing in the Federal courts as to what constitutes negligence under the common law. However, there is no difference between the decisions of the Federal court and of this court as to what constitutes negligence." Mo. Pac. Rd. Co. v. Skipper, 174 Ark. 1083, 298 S.W. 849.

Not only has the Federal court and this court adopted the same rule as to what constitutes negligence, but each court has held that verdicts of juries must have a more substantial basis than mere conjecture or speculation on which to rest. "It is a well-established doctrine, often recognized by this court, that juries will not be permitted to rest a verdict purely on speculation; that there must be testimony which warrants a finding of the essential facts or which would warrant a reasonable inference of the existence of those facts upon which liability is predicated before a verdict will be permitted to stand." Texas Co v. Jones, 174 Ark. 905, 298 S.W. 342; St. L. I. M. & S. R. Co. v. Belcher, 117 Ark. 638, 175 S.W. 418; St. L. I. M. & S. R. Co. v. Enlow, 115 Ark. 584, 171 S.W. 912; Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, 159 S.W. 214. We also said in the Texas Co. v. Jones case, supra: "The mere fact that plaintiff was injured while working for the defendant and while in the exercise of due care himself is not sufficient to justify a verdict against the defendant. There must be some evidence of the negligence of the defendant and that that negligence caused the injury." Under the decisions of this court and under the decision of the Federal court, it is necessary for the plaintiff to prove, not only that the defendant was guilty of negligence, but the evidence must also show that defendant's negligence caused the injury. It is not necessary, however, that plaintiff show by direct evidence that defendant was negligent, nor is it necessary to show by direct evidence that defendant's...