St. Louis & San Francisco Railroad Co. v. Coy

• Decision Date: 01 June 1914
• Docket Number: 18
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. COY
• Court: Arkansas Supreme Court

168 S.W. 1106

113 Ark. 265

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. COY

No. 18

Supreme Court of Arkansas

June 1, 1914

[Copyrighted Material Omitted]

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

STATEMENT BY THE COURT.

Appellee was the plaintiff below, and alleged in his complaint that he was a citizen and resident of the State of Missouri, and that on the 17th day of August, 1912, he became a passenger upon one of defendant's freight trains for the purpose of being transported from Gibson, Missouri, to Mount Vernon, in the State of Illinois, and that on said day, and while the car in which he was a passenger was being switched from one track to another in the yards of the defendant at Chaffee Missouri, the same was carelessly, negligently and recklessly kicked and thrown against other cars standing upon the track causing the plaintiff to be thrown down in the car in which he was riding, and the contents of the car, consisting of a lot of watermelons and the planks which held the melons in place, were thrown against him, mashing him against the car and injuring him very severely. He alleged that his injuries were occasioned by the negligence of the defendant railroad in this--that the agents and servants of the defendant who were engaged in switching the car in which the plaintiff was riding from one track to another, at Chaffee, Missouri, carelessly, negligently. and recklessly, and without any notice to the plaintiff, kicked said car down the track and into other cars standing thereon, with great force and violence, breaking loose the fastenings which held and protected said melons, and crushing him, as aforesaid. As a result of this negligence, he alleged that he had sustained the following injuries: That his body was scraped and bruised; his arms were bruised; he was internally injured by being mashed; his right leg was paralyzed; his left hip injured, and his spine injured; and his nervous system shattered; from which injuries, together with the shock to his nervous system, he has been made sick, lame, nervous and disabled, and has continued to be in that condition from the date of his injury up to the present time, so that he is now a hopeless cripple and will remain so during the remainder of his life. He alleged that continuously since the time of his injury he has suffered great and excruciating pain of body and anguish of mind, and will so continue to suffer throughout the remainder of his life, as a result of said injuries, and that he has wholly lost his capacity to perform manual labor and earn money, and that he has expended the sum of three hundred dollars for medicine and medical attention. Plaintiff prayed damages in the sum of forty thousand dollars.

The defendant company filed a suggestion in writing, stating that on the 27th day of May, 1913, in a cause pending in the District Court of the United States for the Eastern Division of the Eastern District of the State of Missouri, wherein the North American Company, a corporation, was plaintiff, and the St. Louis & San Francisco Railway Company, a corporation, was defendant, an order was made placing the defendant railroad in the hands of receivers, and this suggestion alleged that the defendant railroad was engaged in interstate commerce and operated a line of railroad through Missouri, Arkansas and Texas, and that said receivers were in charge of all of its property and were operating the same, and that on the 2d day of July, 1913, said receivers filed a copy of the bill of complaint, and the order of the court under which they were appointed and caused the same to be entered of record in the United States Court, Western District of Arkansas, Fort Smith Division, and stated that the receivers were operating within the said Western District of Arkansas by the approval of said court. It was alleged in this suggestion that the plaintiffs in the present case had not obtained leave of the United States Court in either of said districts to sue the receivers, and defendant moved the court to require the plaintiff to obtain leave of the court to prosecute this action and to require said plaintiff to make the receivers parties thereto. This motion was overruled, and defendant saved its exceptions.

The defendant filed an answer, in which it set up its suggestion of the receivership, and the court's refusal to order the receivers to be made parties. The answer contained a general denial of all the material allegations of the complaint, and specifically denied that the plaintiff was a passenger at the time of his alleged injury, and it was denied that he had been injured.

The evidence upon the part of the plaintiff was to the effect that he lived near Gibson, Missouri, and on the 17th of August, 1912, shipped two carloads of watermelons from that place to Mount Vernon, in the State of Illinois; that one of these cars of melons was sealed, but he took passage in the other car with the intention of peddling melons at all of the stations along the line of the railroad to his destination. He had a man prepare, under his directions, a partition in the unsealed car to hold the melons in each end of the car, leaving a passageway between for his occupancy and in which to sell his melons. He had three planks nailed up on each side, and the space reserved between was the width of the doors, and this space was all open. He took with him a wash-pan, a glass, towel, bucket, lantern and a chair, with the expectation of occupying this car until he arrived at his destination. He took passage at Gibson in the afternoon, and arrived at Chaffee, Missouri, the following morning, after having spent the night in the car. There were a number of other shippers of melons in this train, and it appears that they, too, traveled in, and occupied during the night, the cars in which they were shipping their melons.

The proof is conflicting in regard to the custom of melon shippers thus to use and occupy the cars containing their melons. Appellee testified that this was the second shipment of melons that he had made, and that on his first shipment he had not been permitted to ride in the car containing his melons, because he had not obtained a peddler's license at the time the bill of lading for the car was issued, but that other shippers having cars of melons in that train were permitted to ride in their cars, and he was told at the time that that privilege would thereafter be accorded him if he asked and secured a peddler's license from the company, when he secured his bill of lading. Appellee testified that when he made this second shipment the station agent at Gibson handed him his bill of lading with the remark, "This is your peddler's license. If you had had that before, you would not have had any trouble." What was called the "peddler's license" consisted of an endorsement written by the agent upon the face of the bill of lading in the following language: "Peddler's privilege of going in local, man in charge." Appellee testified that he paid $ 42.50 for transporting this one car of melons, but he did not understand that his peddler's privilege had cost him anything extra. He further testified that he occupied his car openly, without any attempt to conceal his presence there, and the use he was making of the car, and he says that all other shippers in that train did the same, and that he assumed that his right to thus use and occupy his car was unquestioned, and was known to all of the train crew, and that neither the conductor, nor any one else, demanded any fare of him, or intimated that there was any impropriety or breach of the company's rules in traveling in his car. He further testified that the train which brought him to Chaffee, Missouri, was broken up there, and that the cars of melons were shipped to different points. He states that before this was done he and certain other shippers left their cars to secure breakfast, and that he hurried to return to his car, to be "on duty," as he expressed it, for the purpose of selling his melons and being in his car when the railroad company was ready to ship it out. He stated that after returning to his car he was sitting in the door, with one foot over a plank which he had nailed across the door, and that he was on the left-hand side of the car, at the time the engine fastened to his car, and that as the car moved forward he was riding backward; and he stated that he looked out of his car and saw the engineer looking him in the face and that he was only half the length of the car from him; that the engine started and ran rapidly (the proof on the part of the plaintiff being that the rate of speed was about fifteen miles an hour at the time it collided with the other cars), and that he thought they were about to transfer his car around to the right track to attach it to the train of which it was to become a part. He describes the collision as follows:

"He started running fast, and I sat there and looked at him until I seen my two cars--saw him shove me on and stop. When he did that I turned my head and looked back to see where I was going, and just as I turned my head the two cars hit a string of cars up there, then there were a few minutes I did not know anything; do not know whether it was two minutes, three minutes or four minutes. The engine was gone; nobody else in sight of me that I could see. When the jar came, it throwed all the melons away from the end, and there was a four-foot space there where there was not a melon. They were piled in the car in this space around me, and the two top planks that was nailed good and solid both come off. The bottom one that was put in behind these notches on the door pulled loose and caught that leg in that shape (indicating) and threw it under the chair (indicating). ...