St. Louis Southwestern Railway Company v. Rogers

• Citation: 266 S.W. 281,166 Ark. 389
• Decision Date: 08 December 1924
• Docket Number: 41
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. ROGERS
• Court: Supreme Court of Arkansas

266 S.W. 281

166 Ark. 389

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. ROGERS

No. 41

Supreme Court of Arkansas

December 8, 1924

Appeal from Prairie Circuit Court, Southern District; George W Clark, Judge; affirmed.

Judgment affirmed.

J. R. Turney and Lamb & Frierson, for appellant.

There is no presumption of negligence in this case, and plaintiff cannot recover in the absence of negligence by defendant. 62 L. ed. 167. Independently of the Federal statute, plaintiff could not recover without proof of negligence, since deceased was a member of the train crew by whose alleged negligenec the injury was caused. 100 Ark. 467. It was incumbent upon the plaintiff to negative any inference that the injury resulted from a danger or cause for which the defendant was not responsible and to take the case out of the realm of speculation and conjecture, and if, from the evidence, it appears that the injury might have been due to a cause for which the defendant was not responsible as well as to one for which it was, there can be no recovery. 109 Ark. 206; 116 Ark. 56; 105 Ark. 161; 35 N.E. 89; 105 N.W. 197; 64 Ill.App 249; 158 Mass. 36; 113 Mich. 582; 20 N.Y. 65; 58 N.J.L. 658; 117 Ind. 439; 28 Wis. 522; 10 Or. 161; 18 A. 334. Instruction No. 4 did not correctly define contributory negligence. It can only exist as a coordinate or counterpart of or with negligence on the part of the defendant, of which there was none. 38 F. 711; 156 Cal. 58; 112 La. 599; 153 Ind. 163. Instruction No. 5, after allowing damages to the widow and child for pecuniary benefits, also allowed further damages for the physical pain and anguish suffered by deceased, which was error. 237 U.S. 48. It was in conflict with instruction No. 10.

Tom Campbell, and Pace & Davis, for appellee.

In testing the legal sufficiency of evidence to support a verdict for a plaintiff, it must be considered in the light most favorable to plaintiff. 131 Ark. 593; 131 Ark. 509; 133 Ark. 30; 147 Ark. 159; 157 Ark. 409; 158 Ark. 598. It is not necessary for the facts to establish negligence conclusively but is sufficient if negligence may be fairly inferred therefrom. 107 Ark. 486; 103 Ark. 61. A cause will not be reversed on appeal where there is any substantial evidence to support it. 129 Ark. 369. Instruction No. 4 correctly defined contributory negligence under the following decisions: 77 Ark. 367; 101 Ark. 376; 78 Ark. 103. Instructions 5 and 10 were not conflicting. They are supplementary and must be considered together. 133 Ark. 206; 147 Ark. 302; 158 Ark. 639.

OPINION

SMITH, J.

Appellee brought suit under the Federal Employers' Liability Act to recover damages on account of the alleged negligent killing of E. L. Rogers, while employed as a brakeman by the appellant railroad company, on the night of September 6, 1921.

Rogers was the head brakeman on a freight train running from Stuttgart to Jonesboro, and his train had been ordered to take the passing track about one mile north of Stuttgart for the purpose of giving the right-of-way to a passenger train. Rogers was last seen alive by the engineer of the train, swinging on the ladder of a box-car about five lengths from the engine, with his lantern in his hand. At that time he was on the east or right side of the train, and his mangled body was found on the left or west side of the train, where he was next seen by any of the witnesses who testified in the case. How, when or for what purpose Rogers crossed over the train or under it is one of the controlling facts in the case.

It is the theory of the defendant railroad company that, in some unexplained way, Rogers fell or was knocked from the train while it was pulling in on the passing-track. In support of this theory the defendant urges the following facts: The train was 63 cars in length, and Rogers' duty was at the head or front of the train, near the engine, and he had no duty to perform at the rear of the train, and it is not affirmatively shown that he was performing any duty there. As the train pulled in on the passing track, it was discovered that there was a leak in the airline running under the cars, and Mitchell, the conductor, discovered a car where this condition existed, and directed Yeargan, one of the brakemen, to repair or adjust this leak. There is no affirmative testimony that there was any other leaking air valve in the train. Rogers had opened the switch to the passing track, and was last seen near the engine, riding the train as it pulled into the passing-track. No member of the train crew saw him go to the rear end of the train, and no one knew that he had done so until his body was found. Indeed, it is the theory of the defendant railroad company that he had not gone there at all, but had fallen from the train, or crossed under it, and had been run over and mangled, and that the train passed on over his body until the engine was near the north end of the passing track, thus leaving Rogers' body at the rear of the train when it stopped. In further support of this theory it is pointed out that Rogers' foot was found 32 rail lengths north of the place where the body was found, thus indicating that it had been caught on the wheels and the amputated foot had been carried along the moving train until it finally fell from the wheel. Plaintiff admits that the foot was found the distance stated from the body, but insists that this fact does not tend to show that Rogers was not killed by the second movement of the train, that is, after the train had come into the passing-track and had started to pull out of this track on to the main line, and that the foot hung on the brakebeam or other attachment of the trucks until the train started to leave the next morning, when it was jostled loose and fell to the ground, when the car was moved 32 rail lengths north of where the body was found.

The testimony shows that, when a freight train stops, it is the duty of the brakemen to look for hot boxes, leaking air valves, broken brakebeams, or other trouble with the train equipment, and it is the theory of the plaintiff that the leaking valve which Conductor Mitchell told brakeman Yeargan to repair was not the only leaking air valve, and that, when Rogers caught the car near the engine, he went over to the west, or left, side of the train, and dropped off the car on which he was last seen riding, and there waited for the cars to pass by, as the train rolled through the passing-track, searching for a leak; that Yeargan repaired the leak pointed out to him by Mitchell, which was near the middle of the train, and Rogers, seeing Yeargan on the car where the known leak existed, permitted the train to pass on until another leak was discovered. The presence of a leak was discoverable by the hissing sound made. No leak was discovered by Rogers until about the fifteenth car from the rear of the train passed, and Rogers caught this car and rode it until the train stopped, and then went under the train from the west side of the train to repair the leak, as Yeargan had done to repair the one near the center of the train.

On behalf of the defendant railroad company it is insisted that this is all surmise and conjecture, and that there was no testimony upon which the jury could find the facts so to be. One reason for this insistence is that only one leak was found, and that was the one which Yeargan repaired.

We do not think, however, that this theory is mere surmise. On the contrary, there is substantial testimony upon which to base it. One significant fact is that, although it is insisted that only one leak was admitted to exist by the train crew who testified on behalf of the railroad company, there was great difficulty in moving the train on to the passing- track, and difficulty was also experienced in starting the train as it moved to pull out of this track, and the witnesses testified that this resulted from the brakes locking on account of escaping air. Another circumstance even more significant is that, when the body of Rogers was found, his hat and lantern were found near his body in the center of the track on which he was killed. There were no bruises about Rogers' body above his waist, except a small scratch on his forehead which did not break the skin. The hat, a straw one, was undamaged, and the lantern, which was also undamaged, was setting upright, although it was extinguished. The earth was disturbed where the hat was found in a manner which looked as if it had been done by one's heel.

These circumstances tend strongly to refute the theory that Rogers had fallen between the cars, and the jury was warranted in finding that these circumstances support the theory that Rogers was engaged in repairing, or had just completed repairing, a leak under the car where he had been working.

It will be borne in mind that no one saw Rogers killed, yet he was killed, and the testimony establishes the fact that he was an efficient and faithful servant, thoroughly cognizant of his duties, and thoroughly familiar with the rules under which trains operated, and one of his fellow-brakemen testified that he was a man who always did his part.

We are unable therefore to say that the finding by the jury that Rogers was, in fact, engaged in repairing a leak was mere surmise or conjecture.

In the case of St. L. I. M. & S. R. Co. v Hempfling, 107 Ark. 476, 156 S.W. 171, we said: "In actions for damages on account of negligence, plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. This would often be impossible. It will be sufficient if the facts...