St. Louis Southwestern Railway Co. v. Kendall

• Decision Date: 13 July 1914
• Docket Number: 118
• Citation: 169 S.W. 822,114 Ark. 224
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY AND ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. KENDALL
• Court: Arkansas Supreme Court

169 S.W. 822

114 Ark. 224

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY AND ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. KENDALL

No. 118

Supreme Court of Arkansas

July 13, 1914

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; modified and affirmed.

STATEMENT BY THE COURT.

This is an action for damages for personal injury to appellee suffered in a collision between the passenger train of the St. Louis, Iron Mountain & Southern Railway Company, on which appellee was conductor, and a local freight train of the St Louis Southwestern Railway Company at the crossing of the tracks near Clarendon. The tracks of this railway company hereafter called the Cotton Belt, and the Iron Mountain cross each other nearly at right angles, and on the morning of the accident the train on which appellee was conductor left Clarendon about 7:30, and whistles were blown for the street and railway crossings. The train slowed down, the porter got off and walked ahead to the crossing, and flagged the engineer to come on. He started up with an increased speed and after his engine had passed the crossing, he heard a noise that attracted his attention, and discovered the train on the Cotton Belt track approaching. It was at the stop-board, and the wheels were sliding. He immediately increased the speed of his train to clear the crossing and get out of the way of the other train. The Cotton Belt engine struck the back end of the negro coach and the front end of the white coach, and went through the train, wrecking it and crushing and bruising appellee's body, breaking three ribs, dislocating his shoulder and cutting a bad gash in his head. The Cotton Belt train had been switching and was standing on the track about 530 feet from the crossing when it started up. The porter who signaled the Iron Mountain train to cross said he did not see the Cotton Belt train on its track at the time. That his view was obstructed by some cars near the seed house, although many others testified that there were no cars on any track that could have prevented his seeing the train. When the engineer of the Cotton Belt train started up, he took his orders he had received at Brinkley and was reading them over again, and did not discover the Iron Mountain train until he was within 175 feet of the crossing, too close to stop and avert the collision. He was surprised and stunned at the sight, but immediately put his brakes in emergency, and tried to stop his train.

The evidence shows that the enginemen on either train could have discovered the presence of the other train by looking, five or six hundred feet before reaching the crossing, and that none of them looked. The Iron Mountain engineer said that he relied upon his flagman, and thought he had the right-of-way, and did not look on that account, and the other engineer was reading his orders.

A witness who was some distance below the crossing saw the porter on the crossing signaling the Iron Mountain train to come on, and he also saw the Cotton Belt train upon the track beyond, coming. Did not know why the porter did not see it.

Another witness was near the crossing south of both tracks, and said the Iron Mountain train was between her and the north side. She saw the negro signal the Iron Mountain train to cross, and could see the Cotton Belt train coming at the time; saw both trains. The Iron Mountain train was at the crossing a little ahead, and after it started over the crossing, she could not see the Cotton Belt train coming down the track.

The appellee was sixty-two years old at the time of the injury with a life expectancy of 12 and 86/100 years. He was in bed about three months, the result of the injury, and peritonitis developed and aggravated his suffering. He claims to be suffering now from neuritis, which grows worse during spells of bad weather. He is permanently injured and totally incapacitated for doing manual labor. He was earning $ 1,600 a year at the time of the injury as conductor, and making about that much out of his store at Holly Grove. He estimated his income at $ 3,000 a year. The jury returned a verdict against both the railroad companies for $ 18,000 for pecuniary loss, and $ 20,000 for bodily injury, pain and suffering, and from the judgment, both the companies appeal.

Judgment affirmed.

E. B. Kinsworthy, P. R. Andrews and T. D. Crawford, for appellant, St. Louis, I. M. & S. Ry. Co.

1. The verdict is excessive. No such allowance as $ 24,000 has ever been sustained.

2. When two trains approach a crossing at the same time, the rule is that the one which first reaches and stops at the post upon its line is entitled to precedence in crossing. 54 F. 649; 52 Am. & E. R. Cas. 462; 38 Minn. 455; 116 Ind. 60-2; 97 Ala 515; 13 So. 408. Trainmen on one road who comply with the statute on approaching a crossing have a right to assume that trainmen on the other road will also comply with it. 97 Ala. 515; 13 So. 408; 65 Tex. 32. Agreements as to crossings are binding. 42 A. & E. R. Cas. 233. There is no presumption of negligence in favor of an employee engaged in operating a train, as against the employer. 113 Mo. 70; 20 S.W. 896; 100 Ark. 422; 60 F. 993. To warrant a finding that negligence was the proximate cause, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and ought to have been foreseen. 93 Va. 49; 57 Am. St. 786. Ordinarily, the question of proximate cause is for the court where the facts are not in dispute; if in dispute, for the jury. 139 Pa.St. 363; 10 Allen. 535.

3. In view of these authorities, there was error in the charge. The court should have directed a verdict for the Iron Mountain Railway Company.

Sam H. West and J. C. Hawthorne, for St. Louis Southwestern Railway Company.

1. The third and fourth instructions asked for defendant railway company should have been given. Plaintiff was in charge of the train and responsible for the collision. The question of plaintiff's, and the employees under him, negligence should have been submitted to the jury. 53 Mo.App. 276; 78 Ill. 619; 50 N.E. 729. The negligence of a son is imputable to a father in cases like this. So is the negligence of those whom the injured fellow-servant controls or directs. 25 N.E. 355; Ib. 863; 71 N.E. 799; 41 N.E. 629.

2. The verdict is excessive.

Thomas & Lee, for appellee.

1. Both defendants are liable as joint tort-feasors, and the case was submitted to the jury under proper instructions. Both were negligent. 63 Ark. 177; 29 Cyc. 565; 61 Ark. 381; 23 Id. 112; 203 Ill. 518; 33 Cyc. 726.

2. Verdict not excessive. 13 Cyc. 38, 39-245; 92 Ala. 209; 87 Ga. 69; 114 Ga. 183; 84 Id. 297; 74 Id. 851; 13 Cyc. 47; 11 L. R. A. 43; 82 Kan. 318.

3. As to separate liability. 51 F. 649; 73 Ark. 112-116; 27 L. R. A. (N. S.) 209.

OPINION

KIRBY, J., (after stating the facts).

Neither of the appellants complain of the instructions given the jury on the part of the appellee, both insist that the verdict is excessive, and each contends that but for the negligence of the other, the accident would not have occurred, and that any negligence on its part was not the proximate cause of the injury. There is no doubt but that those in charge of the Cotton Belt train, by keeping a lookout, could and would have seen the Iron Mountain train approaching the crossing in time to have avoided the...