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

• Decision Date: 03 February 1913
• Citation: 155 S.W. 88,106 Ark. 491
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. FITHIAN
• Court: Arkansas Supreme Court

155 S.W. 88

106 Ark. 491

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. FITHIAN

Supreme Court of Arkansas

February 3, 1913

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; affirmed.

STATEMENT BY THE COURT.

Appellee the administratrix of the estate of the deceased, brought suit for the benefit of herself and minor son against appellee for damages for the wrongful death of her husband Lloyd George Fithian, alleged to have been caused by the negligence of the railroad company. The complaint alleges that the deceased was in the employ of the railroad company as a brakeman on one of its trains, and while in the performance of his duty as a brakeman upon a train engaged in interstate commerce, he was killed through the negligence of the said railroad company, as follows:

"That on the 2d of March, 1911, the car upon which Fithian in the performance of his duty, was riding, was derailed, causing his instant death; that the derailment was caused by defect in the track or road bed of defendant and that the track and road bed where the car was derailed was constructed so that trains should run over the same slowly, and that the employees negligently ran the train at a rate of speed greater than was safe to run the train over said track and road bed, causing the derailment and death of Fithian. That deceased was twenty-six years of age with an earning capacity of $ 100 per month, with opportunities and chances for an increase; that he was strong, healthy and supported his wife and child, and was their only support. That the value of the contributions which he would have made to them during his natural life would have been $ 10,000, in which sum they were damaged. That the minor son has been damaged in the sum of $ 2,500 in the loss of parental training, care and attention, which his father would have given him during his minority. Prays judgment for $ 12,500."

The answer admits that the train was engaged in interstate commerce; denied that deceased was killed through any negligence of the railroad company; and denies specifically all the acts of negligence alleged in the complaint. Denied the earning capacity of the deceased. as alleged and his contributions to the widow and next of kin; alleged that the deceased was well acquainted with the condition of the track road bed and trestle, and the manner and rate of speed at which the train was operated and, knowing all these facts remained in the service of the defendant company and thereby assumed the risk of injury arising from said causes * * * *

The facts substantially are that the deceased, Lloyd George Fithian, was a brakeman in the employ of the appellant company, at work on appellant's local freight train on the day of the accident and his death. About one mile south of the Frisco passenger depot in Ft. Smith, a refrigerator car, empty, except as to the ice in the bunkers, the fourth car back from the engine in the train, left the rails, ran along a bridge or trestle for about thirty feet and fell down the embankment at the north end of the bridge, breaking Fithian's neck and killing him instantly. It is not questioned that he was riding on the car in the performance of his duty, in accordance with the rules of the company. A scar on the rails of the track showed where the derailed car had mounted the rail, about seven feet west of the west end of the bridge; ran along on top of the rail for nine or ten feet and then jumped off on the ties on the bridge and continued across it on the ties, to the embankment, where it fell a considerable distance. The testimony was in conflict as to the speed of the train, all the other employees of the train testified its speed was from ten to twelve miles an hour and not over fifteen in any event; the engineer, fireman and two of the brakemen testified that the train stopped at the Iron Mountain crossing, 1,668 feet away from the bridge and that it could not have acquired a greater speed than that after making such a stop. Two ladies testified, and one of whom, who was the wife of an engineer, testified that she had ridden frequently with her husband in the engine and knew how to run an engine herself and was acquainted with the speed of a train, said the engine was going, at least, thirty-five miles an hour at the time of the wreck and from the speed at which it passed her shortly before reaching the bridge where it was derailed and went over the embankment was so great she was satisfied it could not have stopped at the crossing below, as stated by the employees. From her knowledge of the speed of trains it would not have been possible for it to have acquired that rate of speed from a stand start, at that distance. The other witness testified that she was not sufficiently acquainted with the running of trains to state at what speed the train was going, but that she had observed trains passing, as she lived near the railroad for some years and that the train was going as fast as she ever saw one run before it reached the bridge, left the track and turned over.

Dr. I. A. Ryan was present when the car turned over and killed the deceased, observed the running of the train and saw nothing unusual about the speed of it. Didn't think it could have been going more than twelve or fifteen miles an hour. Two civil engineers, experts, testified over appellant's objection, that from their knowledge of the operation of trains and their observation of the condition of the track and information as to the distance the engine ran after the train broke in two before it stopped, that the train must have been going as much or more than twenty miles an hour. Appellee's witnesses, one an ex-road master for the Iron Mountain, of years of experience, and a civil engineer and employee of the street car company in Fort Smith, made measurements of the track, the curves and elevations of the rails and testified that the injury occurred on about a three degree curve. That proper railroad construction required that the outer rail of the track be elevated about three inches above the other to make safe the road bed for trains making any speed. They testified further that from the measurements made from the beginning of the curve on up to the bridge where the car left the track, that the elevation was all the way from one inch to three inches and three and a half inches, and that it wasn't uniform; the ends of some rails and the middle of others being one inch, one and a half inches and two inches; at other places, it was higher and lower. They also stated the outer rail was a quarter of an inch lower at the west abutment of the bridge than the inner rail. They stated that this track was not properly constructed with reference to the safety of the operators of the train and road, and the running of trains for a speed of more than ten or twelve miles an hour; the road master testifying that, from his experience, he would have required a slow order at the place to ten miles an hour. Their testimony does not disclose whether they took into consideration in stating it was negligent to construct the track on this curve with this elevation, the fact that a switch track led off from the main track fifty feet west of the bridge at a different curvature. The appellant's testimony shows that the track was the main line, over which thirty or forty trains per day pass; that the passenger trains ran at much greater speed than did the freight trains; that it had been in use for twenty-five years with the bridge practically as constructed at the time of the accident; that no other accident had occurred there on that part of the track; that the section foreman inspected it twice daily; he also stated it was in good condition at the time of the accident and the engineer, fireman and conductor, each, likewise, stated the track was in good condition; that they had been running over it, some of them, for years, at a like and greater rate of speed; that they made an examination of it after the wreck and found it in the usual good condition. The road master also examined it immediately after the wreck, being upon the passenger train behind the wreck and could discover no defect in it at all, and all the employees on the wrecked train testified that there was no unusual rocking of the train in crossing this track at the time of the wreck. It also appears that the bridge is in virtually the same condition as it has been for the past twenty-five years, being constructed of steel girders on stone or cement masonry. Appellant's expert civil engineer testified that the outer rail of the curve on the bridge was a quarter of an inch higher than the other and shown to be so by instruments made for measuring and ascertaining such conditions, accurately. The experts for appellee testified that it was a quarter of an inch lower than the other rail.

The court instructed the jury, refusing to give the peremptory instruction for appellant and also its instructions Nos. 13 and 14, over its objection, which are as follows:

"13. If the evidence fails to establish the material facts upon which the expert opinions were based, then you should disregard the opinions of such experts based upon said facts.

"14. If any of the experts' opinions were based upon only a part of the essential or fundamental facts as developed in the evidence, you should take this into consideration in determining what weight should be given to the opinions of the experts."

The administratrix, Jessie Fithian, the widow of deceased, was permitted to testify over appellant's objection, as to the amount of the contribution her deceased husband had been making to her for the support of herself and family. It also developed that she had brought a suit recently before the accident for divorce against her husband, alleging as grounds...