St. Louis Southwestern Ry. Co. v. Ellenwood

• Decision Date: 24 April 1916
• Docket Number: (No. 357.)
• Citation: 185 S.W. 768
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. ELLENWOOD.
• Court: Arkansas Supreme Court

Page 768

185 S.W. 768

ST. LOUIS SOUTHWESTERN RY. CO. v. ELLENWOOD.

(No. 357.)

Supreme Court of Arkansas.

April 24, 1916.

Appeal from Circuit Court, Dallas County; Turner Butler, Judge.

Action by W. C. Ellenwood against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Edw. A. Haid and A. L. Burford, both of St. Louis, Mo., and Bridges & Wooldridge, of Pine Bluff, for appellant. W. D. Jackson and Pace, Seawell & Davis, all of Little Rock, for appellee.

HART, J.

W. C. Ellenwood sued the St. Louis Southwestern Railway Company to recover damages for personal injuries which he alleges he sustained by reason of the negligence of the railway company while in its employment as yardmaster. The defendant denied liability upon the ground that it was not guilty of negligence and that the plaintiff assumed the risk. The issues were tried before a jury, which returned a verdict for the plaintiff. From the judgment rendered the defendant has appealed. The material facts relating to the happening of the accident are as follows:

The plaintiff was severely injured on the night of December 21, 1914, by falling or being thrown from the roof of a car in a train which was being stored on a side track in defendant's yards in the city of Pine Bluff, Ark. The plaintiff was 39 years old, and had been engaged in railroad work practically ever since he was 12 years of age. He started as callboy, and worked in that position for about 8 years. He then became a brakeman, and served in that capacity until the latter part of the year 1897. Since that time he had been serving as yardmaster and conductor. He had been working as night yardmaster for defendant for about 10 months when he was injured.

The repair shops of the defendant were situated at Pine Bluff, and the yards there were about four miles long. The yards contained a number of tracks upon which trains are received and are made up and sent out of the yards. The yards also contained tracks on which cars are stored. The cars that are sent in to be repaired are usually stored on what are called rip tracks. It is the duty of the yardmaster to receive trains and store them on the various tracks in the yards and to make up trains that are made up at Pine Bluff. At the time the plaintiff was injured he went to work at 7 o'clock in the evening and quit at 7 o'clock in the morning. The yardmaster had an office in the yards, and when the day yardmaster went off duty he left a train card which advised the night yardmaster of the condition of the tracks in the yards. There was also posted in the office a "line-up" which gave the number of the regular trains, the time of the extra trains, and the direction and time of arrival of the trains. This "line-up" gave no idea of the character of the trains or what they contained. This information is obtained from the manifest or consist. The consist gave information which showed the class of loads in the train, where they were going, their tonnage, and whether empties, bad-order, or good-order cars. Bad-order cars were usually noted "B. O. Shops," which meant they were bad-order cars to go to the shops. When a train of empties was to arrive, ordinarily the message would simply contain the number of the train and the number of empty cars in it.

On the night of the injury the plaintiff said he went to the office of the yardmaster and examined the clips posted there, and that there was nothing in them advising him that a bad-order train was due to arrive that night; he went on out in the yard to work, as there were a great many trains coming in that night, and while out there received information that train No. 500, consisting of about 90 empty cars, was due to arrive at 11 p. m.; that this information was delivered to him in the yards by the train dispatcher, but he was not advised that it was a badorder train; that it was the duty of the dispatcher to notify him if there were bad-order cars in the train; that the only information he had was that it was a train of empties, consisting of about 90 cars; that about 12 o'clock he received information that extra train No. 500 would be in ahead of No. 15 or right behind it; that the dispatcher gave him this information; that as soon as he received this information he went to the north end of the yards to receive the trains which were coming while he was talking to the dispatcher; that it was about 2 o'clock at night; that it was dark, cold, and sleeting some; that he went out and personally headed the trains in on track No. 3 and told them to double back on the Dewey track; that he meant by this for them to store all the cars on No. 3 that it would hold and take the rest to the Dewey track; that track No. 3 would hold about 60 of the cars; that when he told them to go to the Dewey track, he was asked by one of the train crew, "Where is the Dewey?" that he got on the train to show them where the Dewey track was, and that he intended to get down and ride back when he was sure they were back in on the Dewey track; that he started to get down off of the cars, and while doing so looked around and saw that there was no one there to take care of the cars, and, there not being much time, he went on top and began to signal the engineer to slow down; that he saw that he must ride on the rear end of the cars, because there was no one else to do so; that he walked to the second car to the rear and was still giving the slow signal, the last signal that is given before you give the signal to stop; that the track was a little rough, and the motion of the car made him misstep from the running board to the side of the car; that as he made the step he saw that there was a plank off of the roof; that he tried to overstep the hole caused by the missing plank and fell off; he supposed he overstepped the hole and slipped and fell off of the car; that he does not remember where he fell, but does remember trying to catch his feet as he stepped over the hole.

Other witnesses for the plaintiff testified that two boards were gone off the top of the car near the center, and that two were off at the end of the car, and that the end crown molding was gone; that under the boards was the tin roof of the car, and that this tin roof was four or five or six inches below the boards that were gone; that this would make a hole there from four to six inches deep extending from the running board to the outer edge of the car. The plaintiff and other employés of the company for him testified that when a car was in this condition it was customary to temporarily repair the roof, or, upon a failure to do that, to rail the running board of the car with 2×4 pieces.

On the part of the defendant it was shown by several witnesses who worked in the yards that they knew that extra train No. 500 was a bad-order train and was due to arrive some time during the night; that it consisted of about 90 cars, and that most of them were bad-order cars; that the car upon which plaintiff was walking when he was injured was a bad-order car, and was so marked on each side of it; that the board on each side of the car contained the words "B. O. Pine Bluff Shops" printed on the opposite corners of it; that there was also marked in yellow chalk, which would not wash out by rain, the words "B. O. Rip." This mark meant bad-order, rip track, or repair track. The printed letters on the board were about one inch and one-half letters, and the boards were fastened on the side of each end of the car by being nailed. The letters meant bad-order, order, and the car was being billed to Pine Bluff shops.

W. P. Turner, a switchman, testified that he knew that extra No. 500 was a bad-order train; that it was supposed to arrive before 12 o'clock, but did not come in until about 2 o'clock a. m.; that plaintiff told him at two different times about this train and knew that it was a bad-order train.

J. C. Larew, the day yardmaster, testified that there was on file in his office a telegram showing that extra train No. 500 was a badorder train at the time the plaintiff went on duty on the night he was injured; that this telegram was placed by him on the file in the yardmaster's office; that it was there when he went off duty at 7 o'clock in the evening, and was still on file when he returned at 7 o'clock the next morning; that he had a conversation with plaintiff after he was hurt; and that plaintiff had admitted to him that he knew extra No. 500 was a bad-order train.

After he was injured plaintiff signed a statement detailing the manner in which he got hurt. He detailed the circumstances substantially as they appear in his testimony, and in this statement he refers to the fact that the Dewey track was the only available place for bad-order cars without interfering with the fruit extra and No. 15.

It is also shown by the defendant that the "line-up" posted in the yard-master's office gave the information as to whether or not a train contained bad-order cars. It was shown that the train in question contained about 90 cars, and that most of them were bad-order cars. It is also shown by the defendant that the running board of cars which were no more defective than the one on which plaintiff was injured were not protected by railing on each side of it.

The day yardmaster and others testified that the company had bad-order cars coming in every day, and that many of them came in with one or two planks off of the roof and the tin roof still underneath, and in such cases it was not the custom to rail the running board.

The plaintiff, in rebuttal, denied that he told Larew, after he got hurt, that the train from which he fell was a bad-order train; that he only told Larew the reason why he got on the cut of cars; that he did not tell Turner at any time that he was expecting a bad-order train that night; that he did not discuss with other employés, as stated by them, that he was expecting a bad-order train that night.

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