Ultima Thule, Arkadelphia & Mississippi Railway Co. v. Calhoun

• Decision Date: 24 June 1907
• Citation: 103 S.W. 726,83 Ark. 318
• Parties: ULTIMA THULE, ARKADELPHIA & MISSISSIPPI RAILWAY COMPANY v. CALHOUN
• Court: Arkansas Supreme Court

103 S.W. 726

83 Ark. 318

ULTIMA THULE, ARKADELPHIA & MISSISSIPPI RAILWAY COMPANY v. CALHOUN

Supreme Court of Arkansas

June 24, 1907

Appeal from Clark Circuit Court; Joel D. Conway, Judge; reversed in part.

Judgment affirmed and reversed.

Thomas B. Morton and John H. Crawford, for appellants.

1. As to the Arkadelphia Lumber Company, there is nothing in the evidence to show any liability on its part.

2. The master is not an insurer of the safety of the servant, and negligence will not be presumed, but the burden of proof rests upon the party pleading it. Before recovery can be had the negligence charged must be shown to have been the proximate cause of the injury; and no presumption of negligence arises from the happening of the accident. 70 Ark 481; 76 Ark. 436; 79 Ark. 437; 80 Ark. 68; 79 Ark. 608.

An injury which could not have been foreseen or reasonably anticipated as a probable result of the negligence is not actionable. 55 F. 949.

It is not enough that the plaintiff show that he has sustained an injury under circumstances which may lead to a suspicion or even a fair inference that there may have been negligence on the part of the defendant. He must show some specific act of negligence. Black's Law & Pr. in Accident Cases, 214; 29 Vroom (N. J. L.), 659; 113 N.Y. 378; 29 Barb. (N. Y.) 226.

3. The second instruction was abstract, as applied to the evidence and there was no testimony that the boiler was crystallized to such an extent as to be unable to bear the full amount of steam pressure it was designed to bear. 80 Ark. 260.

4. The fourth instruction asked for by defendant should have been given without modification. There being no testimony to show what "prudent" railroads do, the instruction was rendered abstract by the modification.

5. It was error to permit counsel for appellee, over appellant's objection, to argue to the jury that appellant railroad company virtually admitted the efficiency of the water test by resorting to it after the explosion. Overruling the objection to such improper argument sent it to the jury with the force of an instruction.

It is improper to attempt to show negligence by proof that after an accident the defendant had performed some act which it was contended it was negligence not to have done before. 70 Ark. 179.

McMillan & McMillan and Murphy, Coleman & Lewis, for appellees.

1. The age and condition of the engine was sufficient to put appellants on notice that prudence and due regard for the safety of employees required inspection. No test was made, though it is certain that the water test would have disclosed its weakness and averted the injury.

"If the railway company omitted any test of the soundness of its boiler that ought to have been made, it was guilty of negligence." 44 Ark. 529; 67 Ark. 306; 51 Ark. 467; 82 Ark. 372.

2. The modification of appellant's fourth instruction was proper. It is a standard of care to which all railroads should be held. 166 U.S. 618.

3. The argument of appellee's counsel was legitimate and warranted by the evidence brought out by appellants.

OPINION

HILL, C. J.

This is a suit by Mary E. Calhoun in her own right and as next friend of her minor children against the Ultima Thule, Arkadelphia & Mississippi Railway Company and the Arkadelphia Lumber Company, for the death of her husband, P. J. Calhoun, which was caused, as she alleged, by the negligence of said companies. She recovered judgment for $ 5,000, and the companies have appealed.

It appears that these two companies are owned by practically the same individuals. They are separate corporations, however closely connected. Some employees are in the common employ of both, and some are changed from one corporation to the other from time to time. The Lumber Company seems to be the paymaster for both companies. Calhoun had been in the employ of the Lumber Company, and was transferred to the Railway Company, and at the time of his death was working as machinist helper, and was killed by the explosion of a locomotive. There is not sufficient evidence that Calhoun was in the employ of the Lumber Company, and the judgment as to the Lumber Company is reversed, and this cause considered solely between the Railway Company and the appellee.

The engine had been in use by appellant railway company for about ten years, and had been bought as a second-hand engine then. The boilers were of iron--a method of locomotive construction which has not prevailed for the past fifteen years. It had been constantly in use by this road, but had been kept in good condition, and there had been no serious complaints of it. Nearly two years before the accident it had been in the repair shop, and had been thoroughly overhauled, and its boilers tested with the hammer test, and had been placed in as good condition as an engine of its age could be. For about two weeks prior to the accident it had been in the shop for repairs to a swang in one of the back tires. Some other incidental repairs were made at this time; and it had just been run out of the shops when it exploded with terrific force, killing Calhoun whom the discharge of his duties happened to be standing right by it.

The court sent the case to the jury upon this issue, which was presented in the second instruction, as follows:

"If you believe from the evidence that from time and long use the sheet and barrel of the boiler had become crystallized, either wholly or in part, and thereby weakened to the extent that it was unable to carry or resist the full amount of steam pressure it was originally designed to carry and resist, and this fact was known to the defendant or their officers or employees in charge, or could and would have been known to them by the exercise of ordinary care and diligence on their part, and that from and by reason of such crystallized and weakened condition, the boiler exploded and killed deceased, you should find for the plaintiffs."

The serious question of the case is whether there was evidence sufficient to sustain a verdict under this instruction. There was evidence that the iron of the boiler along the line where the explosion occurred had become crystallized, and that crystallization took the life out of iron and weakened it. The consensus of opinion among the experts seems to be that the hammer test would not disclose weakness from crystallization.

Two of the witnesses on behalf of appellee, who...