St. Louis Southwestern Ry. Co. v. Kendall

• Decision Date: 13 July 1914
• Docket Number: (No. 118.)
• Citation: 169 S.W. 822
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. et al. v. KENDALL.
• Court: Arkansas Supreme Court

169 S.W. 822

ST. LOUIS SOUTHWESTERN RY. CO. et al. v. KENDALL.

(No. 118.)

Supreme Court of Arkansas.

July 13, 1914.

Appeal from Circuit Court, Monroe County; Eugene Lankford, Judge.

Action by J. H. Kendall against the St. Louis Southwestern Railway Company and another. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

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, 500 or 600 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 62 years old at the time of the injury, with a life expectancy of 1286/100 years. He was in bed about three months, the result of the injury, and peritonitis developed and aggravated his suffering. 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.

E. B....