Ultima Thule, A. & M. R. Co. v. Benton

• Decision Date: 18 May 1908
• Citation: 110 S.W. 1037
• Parties: ULTIMA THULE, A. & M. R. CO. v. BENTON.
• Court: Arkansas Supreme Court

110 S.W. 1037

ULTIMA THULE, A. & M. R. CO. v. BENTON.

Supreme Court of Arkansas.

May 18, 1908.

Appeal from Circuit Court, Dallas County; H. W. Wells, Judge.

Action by J. P. Benton, administrator of C. N. Crouch, deceased, against the Ultima Thule, Arkadelphia & Mississippi Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and action dismissed.

Paul G. Matlock and Hardage & Wilson, for appellant. R. C. Fuller and Thornton & Thornton, for appellee.

HILL, C. J.

The undisputed facts are as follows: Crouch was an employé of the railroad, being the foreman of a track-laying crew, working 17 miles from Dalark. The railroad company carried the construction crews to and from their work on its trains. It used flat cars, upon which there were no seats, and the employés were accustomed to sit on the sides, with their feet hanging over. The employés frequently carried wood on the train, and threw it off as they approached their respective residences. Crouch was riding on the train, with his legs dangling off the side of a flat car, when one of the employés threw some wood off the car, and one stick rebounded and struck him on the legs, causing serious injury, and probably his death. His administrator sought to recover, and did so, in the lower court upon the theory that he was a passenger and that the company must protect him as such, and that it was negligent in its duties to its passengers on this flat car in permitting other employés to throw off sticks of wood.

If all of the appellee's contentions be conceded, still he is not entitled to recover. "It is generally held that, in order to warrant a finding that negligence * * * is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Scheffer v. Railway Co., 105 U. S. 249, 26 L. Ed. 1070; Railway Co. v. Bragg, 69 Ark. 402, 64 S. W. 226, 86 Am. St. Rep. 206. See, also, Railway Co. v. Fire Ass'n, 55 Ark. 163, 18 S. W. 43. The question of proximate cause is ordinarily one of fact for the jury. But, where the facts are undisputed, and not such as reasonable men would likely draw different conclusions from, then it is a question for the court, and such is this case. The rebound of a stick of wood thrown from a flat car in such a way as to strike the legs of a...