183 S.W.2d 505 | Ark. | 1944
Lead Opinion
Appellee, as administratrix of the estate of her deceased husband, W. S. Keeton, brought this action under the Federal Employers' Liability Act against appellant to recover damages for herself for loss of contributions and for said estate on account of alleged conscious pain and suffering, on account of the alleged negligent injury to and death of her said husband. The complaint alleged that said intestate was employed by appellant as a conductor on a train from Braggs, Oklahoma, to Camp Gruber, and that while so employed and in the discharge of his duties, he was, through the negligence of appellant and its engineer, knocked and caused to fall from said train and was thereby seriously and fatally injured; that intestate was riding upon one of the cars of said train while it was being moved which the *795 engineer knew or should have known; and that said engineer "carelessly and negligently and without signal or warning suddenly and violently stopped said engine and cars with a hard, sudden, violent and unusual jerk and jar, thereby throwing deceased with great force and violence from the said train," resulting in serious injury from which he died about 3 or 4 days later. The answer was a general denial and a plea that intestate's injury and death were occasioned by his own negligence.
Trial resulted in a verdict and judgment for appellee for $20,000 for loss of contributions and $10,000 for conscious pain and suffering, a total of $30,000, from which is this appeal.
The facts are that, on May 29-30, 1942, the train crew of which intestate was a conductor was engaged in switching cars from Braggs, Oklahoma, to Camp Gruber, a distance of about 1 1/2 miles by rail; that Roy Brown was the engineer, Fry was fireman, and Vaughn and Plunkett were the brakemen; that they would take loaded cars out to Camp Gruber and bring back to Braggs empties; that at the time of the accident, they were pushing six cars of sand and gravel ahead of the engine, intestate riding on the fifth car ahead of the engine, sitting astride the right or south side of an ordinary coal car and on the forward end, which car was loaded with gravel, with one foot on the gravel and the other on a grab iron on the outside, and with a switch list in one hand and a lighted lantern in the other; that on the way down they had to pick up an empty car which necessitated the making of a coupling to the forward loaded car; and that in making the coupling intestate fell from the car on which he was riding, resulting in his injury and subsequent death on June 2, 1942. Each and every member of the train crew except Keeton, testified that the train was brought to a complete stop about 100 feet from the empty car and that thereafter the engine pushed the loaded cars up to the empty to make the coupling at a rate of one or two miles per hour at the signal of brakeman Vaughn and that the coupling was very light and easy, and not out of the ordinary in any way. The engineer and fireman *796 testified that it was so easy that they felt no jolt or jar in the cab. Witness Vaughn testified that he gave the signal to the engineer to proceed to the empty after walking to it and gave the easy signal when the front car was about fifty feet away and that by the easy signal the engineer knew you wanted him to slow down; that he gave the stop signal when the train was about three or four feet from the empty and the engineer stopped as soon as possible; and that he went about two feet after the coupling. He said this stop was a very ordinary one, with a slight jar. When asked on cross-examination if this coupling was about as hard as he ever saw the engineer make, he answered: "No, sir, it was a very ordinary one." A little later, in answer to a question whether that stop was the hardest he ever saw him make there, he answered: "Yes, sir."
Appellee testified, over appellant's objections and exceptions to a statement made to her by her husband, as a dying declaration. She said: "He realized that he was very sick and told me he wasn't going to get well. He told me how it happened; he said he was sitting on the corner and there was a sudden stop and he was jerked off. He was sitting on the corner of the car with a switch list in one hand and a light in the other; there was a sudden stop. After he was jerked off, he knew nothing more; just said there was a sudden hard stop and he was jerked off."
This is the substance of all of the testimony the jury had before it on which to make a finding of negligence, and we think it wholly insufficient to show any negligence whatever in making the coupling complained of. All the members of the crew testify that it was just the ordinary coupling and without any unusual jerk or jar — so slight as to be imperceptible to the engineer and fireman. Nor do we think the dying declaration sufficient to make out a case of negligence for the jury, conceding without so holding that it was competent and does not offend, against the statute, 5154 of Pope's Digest.
In Krumm v. St. L., I. M. S. Ry. Co.,
As said by the U.S. Supreme Court in Atchison, Topeka Santa Fe Ry. Co. v. Saxon,
In the recent case of Mo. Pac. R. R. v. Guy,
In the Baum case, supra, we said: "In order to make a railroad company liable to a passenger injured by a jolt or jerk of the train, the rule, as stated in 10 C.J., 1387, p. 973, is as follows: `The jerk or jolt must be unnecessarily sudden or violent; such jerks and jars as are necessarily incident to the use of the conveyance, and are not the result of negligence, will not render the carrier liable for resulting injuries."
There is no evidence in this record that the stop was unnecessarily sudden or violent, only that it was sudden and hard, but not unnecessarily so.
Appellee argues the use of the independent brake which affected only the engine, by the engineer, instead of the brake that worked on each car by application of the air, could or should be considered by the jury in determining the question of negligence, but no person *799 testified that the use of the independent brake was improper, or that the air brakes on all the cars should have been used.
Since, as we have shown, there was no substantial evidence of negligence of appellant, the judgment will be reversed and the cause dismissed.
ROBINS, J., dissents.
Dissenting Opinion
I think the rehearing should be granted. The testimony of appellee was to the effect that Keeton made to her a declaration (competent under 5201 of Pope's Digest of the laws of Arkansas to establish cause of his death) that there was a "sudden, hard stop" and that he (Keeton) was "jerked off." It was the function of the jury to say whether this version of the occurrence was true, and, if true, whether it established negligence on the part of appellant's employee who was operating the locomotive at the time of Keeton's injury. Tennant v. Peoria P. U. Ry. Co.,
We have frequently held that, in testing the sufficiency of the evidence to support a verdict, we must give the testimony in favor of the appellee the strongest probative force that it will reasonably bear. D. F. Jones Construction Company, Inc., v. Lewis,