107 Ark. 476 | Ark. | 1913
(after stating the facts). The issues in (he case, on the pleadings and facts adduced, were submitted to the jury upon correct declarations of law from the trial court, and the evidence was amply sufficient to sustain the verdict. If Hempfling was killed by reason of the negligence of appellant, as alleged in the complaint of the appellee, then there was no assumption of risk on the part of Hempfling, because such negligence was not one of the ordinary risks incident to his employment as a brakeman. The negligence in failing to exercise ordinary care to provide handholds or grab-irons necessary for the proper protection of the brakemen while in the discharge of their duties, and also to provide a safe track, was the negligence of the master, which the servant under the evidence did not assume.
Under the evidence .it was customary for cars like the ones under consideration to be furnished with as many as four handholds for the protection of brakemen. Hempfling had every reason to anticipate that these handholds had been furnished. He had no opportunity before he started upon his1 journey to'ascertain that' they had not been provided, nor was it his duty to make aby inspection of the car to ascertain this defective condition of the cars. Nor was it such an open and obvious defect that he was bound to know thereof. On the other hand, he had a right to assume that' the company had not been negligent in providing safe appliances for doing the character of work that he was called upon to do. It was the duty of the inspector not to permit defectivé cars to go into the makeup of a train.
Learned counsel for appellant, while conceding that the testimony tended “to prove that there were a less number of grab-irons on the two cars than was usual and customary,” and “that the track over which the train was being operated at the point at which decedent met his death was rough and uneven,” nevertheless contend that “there is not a syllable of testimony in the record that either of these conditions contributed in any way to the death of plaintiff’s decedent.” This is the most serious question presented by the record. But we are of the opinion that the testimony was sufficient' to warrant the finding of the jury that Hempfling’s deatli was caused through the negligence of appellant as alleged in the complaint. The facts adduced in evidence, as disclosed in the statement, were sufficient to warrant any reasonable mind in concluding that Hempfling’s death was caused by the failure on the part of the appellant to provide grab-irons on the ends of the two cars between which he fell at the time he was crossing from one to the other. , .
Hempfling was an .experienced brakeman, .in good health, strong and active. As one of the witnesses expressed it, “he was a good steady man, industrious and kept at his work.” It is not at all probable that such a man, pursuing his work in the usual way, would have fallen between the cars and lost his life if there had been the usual and customary safeguards provided by the appellant, and which were necessary to be provided.for the protection of brakemen while crossing from one caito the other.
While there was no eye-witness to the manner of Hempfling’s death, it is certain that he came to his death by falling between the cars, and it is reasonably certain that he would not have fallen if the customary handholds for his protection had been provided.
This is not a case where the evidence is consistent, “equally with the existence or nonexistence of negligence,” as in C. & O. Railway Co. v. Heath, 48 S. E. 508. It is not a case where negligence and proximate cause of death are to be inferred merely from the accident and left as mere matter of conjecture or guesswork for the jury, as in Midland Valley Railway v. Fulgham, 181 Fed. Rep. 91, and the many cases there cited. Nor is it a case where the proof shows that “one of a half dozen things may have brought about the injury.” Nor was it a case where one of several things, for some of which the appellant was responsible and some of which it was not responsible, produced the injury, leaving the jury to guess which one, as in the case of Bolen-Darnall Coal Co. v. Hicks, 190 Fed. 717, relied on by counsel for appellant. But here, as we view the evidence, the death of Hempfling was consistent only with the conclusion that he fell from the car by reason of the fact that he had no grab-irons by which to hold as he was attempting to pass from the twelfth to the thirteenth car, as mentioned in the testimony. In other words, his death was consistent only with the existence of negligence on the part of the company in failing to provide these handholds.
The jury were not invited to guess, without any proof, as to the probable cause of Hempfling’s death. The law is well settled that where there are no eye-witnesses to the injury and the cause thereof is not established by affirmative or direct proof, then all the facts established by the circumstances must be such as to justify an inference on the part of the jury that the negligent conditions alleged produced the injury complained of. Where such is the case the jury are not left in the domain of speculation, but they have circumstances upon which, as reasonable minds, they may ground their conclusions. Negligence that is the proximate cause may be shown by circumstantial evidence as well as by direct proof.
Here practically the uncontroverted evidence shows that appellant was negligent in failing to provide handholds which were necessary to insure the safety of the brakemen in the discharge of their duties, and we conclude that there was, at least, substantial evidence to warrant the jury in finding that the absence of these handholds caused the death of Hempfling. There was no evidence to warrant an inference that Hempfling fell between the cars by reason of any inadvertence or any imprudence on his- part in attempting to cross from one car to the other. There was nothing to warrant the inference that his fall was the result of mere accident. On the contrary, a brakeman of Hempfling’s build, health, experience and habits of work would not likely have fallen through negligence or inadvertence. Such a conclusion, under the evidence, would be unreasonable. But it was quite reasonable for the jury to conclude that Hempfling started to cross from one car to the other in the usual way, as the evidence shows, and that in reaching for the grab-irons which he expected to find he discovered and probably rested his foot on the one grab-iron on the car, while holding to the top and naturally supposed that the other grab-irons were also present on the car as they should have been, and in attempting to lower his foot to one of these grab-irons below the top one, he went down straight under the car because the grab-irons were not there. The position of the broken globe and lantern and the place where the oil was found on the drop end of the other car are not inconsistent with the idea that Hempfling went to his death in the manner indicated; because in the fall Hempfling, in attempting to catch the grab-iron on the thirteenth car and thus support and save himself, might have struck the lantérn in the manner indicated by the position of the oil and the lantern itself and broken globe. Or, the jury might have concluded that - Hempfling attempted to pass over the car by jumping down from the twelfth to the' thirteenth car and in so doing that he slipped and fell between them, striking his lantern at the place indicated by the oil on the drop end in an attempt to catch a!handhold which he supposed was present on that end; arid the jury were warranted in finding that if this was the way in which he fell he might still have saved himself from death by the presence of the handhold. But in either event, in a clear fall between the cars, with no handholds to catch to and nothing else on which to hold, Hempfling was caught in a veritable death trap.
> The witnesses showed that no matter in what manner he may have" fallen, if the handholds had been provided'he might have saved himself by catching same as he went down. So, as stated, the conclusion of the jury that the unfortunate death of Hempfling was the result of -the absence of the handholds on the ends of the cars is not based on conjecture but has substantial basis in the evidence to rest upon.
' The law applicable -here is well stated in a somewhat similar case from Missouri, as follows:
.f ‘ In; actions for damages on account of negligence plaintiff is bound; to prove not only the negligence, but that it' was the cause of- the damage. ’ This causal connection must bé proved by evidence, as a-fact,"arid not be left, to-mere speculation-and ^conjecture.- The rule does • not require, however; that there must be direct priooL of the fact itself. : This-would ofteri be impossible: .- It will be sufficient if the facts proved are of such a nature, arid are só' connected and related to each other that the conclusion therefrom may be fairly inferred.’' Settle v. St. L. & S. F. Rd. Co., 127 Mo. 336; see also Guthrie v. Maine Central Ry. Co., 81 Me. 572; Coats v. Boston & Maine Ry., 153 Mass. 297; Pullutro v. D. L. & W. Railroad, 7 N. Y. Supp. 510; cited in- appellee’s brief:
In -the re'cent case-of St. Louis, Iron Mountain & Southern Ry. Co. Owens, 103 Ark. 61, 145 S. W. 879, the facts tending to show the cansal connection between the alleged negligent act and the death of the brakeman were established by circumstantial evidence only. To say the least, they were no more cogent than the facts relied on in this record to show such connection. In that case the court, after announcing the rule that there must be something more than mere conjecture to sustain’ the finding of the jury, said:
“While this salutary rule is not to be ignored, it is equally well settled that any material fact in controversy may be established by circumstantial evidence, and that, though the testimony of witnesses may be undisputed, the circumstances may i be such that different mind's may reasonably draw different conclusions therefrom. Such a state of case calls, for a submission to the jury of the question at issue; and where the circumstances are such that different minds may reasonably draw different conclusions therefrom, and the result is not a mere matter of conjecture without facts or circumstances to support the conclusion, then it is the duty of an appellate court not to disturb the finding of the jury.’’
Applying the doctrine of the above cases to the facts of this record, the judgment is correct, and it is therefore affirmed.