St. Louis Southwestern Ry. Co. v. Jagerman

• Decision Date: 05 May 1894
• Citation: 26 S.W. 591
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. JAGERMAN.
• Court: Arkansas Supreme Court

Page 591

26 S.W. 591

ST. LOUIS SOUTHWESTERN RY. CO. v. JAGERMAN.

Supreme Court of Arkansas.

May 5, 1894.

Appeal from circuit court, Jefferson county; John M. Elliott, Judge.

Action by Allie E. Jagerman, executrix of Frank Jagerman, deceased, against the St. Louis Southwestern Railway Company, for the death of Frank Jagerman while in defendant's employ. From a judgment for plaintiff, defendant appeals. Reversed.

This is an appeal from a judgment against the railroad for damages on account of the death of Frank Jagerman, which was caused by a wreck on appellant's road, at Jonesboro Stave Company switch, on May 19th, 1891, by the derailment and overturning of an engine on appellant's road, upon which the deceased was at the time acting as fireman, in the employment of the appellant. The complaint alleged that the "railroad had failed in the duty it owed to the deceased to provide him a good, safe, and secure railroad track, and secure machinery and apparatus with which to operate their trains upon defendant's railroad, and conducted itself so carelessly, negligently, and unskillfully in this behalf that it provided and used an unsafe and dangerous railroad track, turnouts, and switch connections, of which it had due notice, in that the switch, turnout, or spur connection on its railroad near Jonesboro was so carelessly and negligently constructed and arranged as to be wholly unsafe and dangerous to trains passing north over its railroad." The answer denied all negligence, and stated that the machinery, appliances, switches, etc., of its road were not defective, and, if they were, that the defendant did not know it, and that it was not negligently ignorant thereof; and that, if defects existed or occurred, they were but risks incident to the employment of the deceased, of which he had notice, etc. The evidence tended to show that, as the engine on which the deceased was fireman went north over the appellant's road, it was wrecked in the night, between 8 and 9 o'clock, and that the deceased was killed by its derailment and overturning; that the switch at which the accident occurred was an approved split switch, in general use on railroads in the south; that it was of the best kind of switch and was in good order and condition after the accident, save some breaks caused by the overturning of the engine; that about 20 minutes before the accident a heavy freight train had passed over it; that the switch was examined after the wreck, and nothing appeared wrong with it, but that it was half open; that it was in first-class working order. The witnesses were unable to account for the accident. G. L. Clements testifies: "My information is that the front wheels of the locomotive ran down the main track, and the driving wheels took the side track, and the baggage car and express car followed the driving wheels of the locomotive; also, the tender tank." He then proceeds to explain that this information was obtained by an inspection of the track and the condition of the wreck. Mr. Clements, the witness, was the yard master of the defendant at Jonesboro, and was at the scene of the accident in 40 minutes after it happened. J. B. Carpenter testifies: "It looked to me as though the locomotive had followed the main track, and the car next to it had taken this track [meaning the side track]. As a matter of course it went this way, and afterwards turned the locomotive over [illustrating]." Witness illustrates this fact, and explains the cause of the accident as follows: "Q. Could that have been possibly done if there had not been a defect in the switch? A. I don't know if I'm a railroader enough to tell about that; but I should have judged that, after the locomotive had passed, the engine, in going over, partially opened the switch, and the next car on it took the switch to the track here. That was my opinion." Against the objection of the defendant, the court, at the request of the plaintiff, gave...