Fort Smith, Subiaco & Rock Island Railroad v. Moore

Hart, J., (after stating the facts). As above stated, it was conceded by counsel for the plaintiff that the suit was brought under the Federal Employers ’ Liability Act, and that the plaintiff’s right to recover was based upon that act. Upon the former appeal it was earnestly insisted that the defendant was not guilty of negligence in any respect. This court, under the facts proved at the first trial, held that, under the evidence of the plaintiff, the jury might find that the negligence of the engineer consisted, in backing the engine and tender with the four cars attached thereto against the string of cars on the sidetrack at unusual speed, which caused a sudden jerk in the operation of the train and threw Moore from the tender, and thereby caused the wheels of it to run over him and crush him to death under the sandbeam of the tender. The engineer testified on the first trial, as he did on the retrial of the case, that the engine and tender were only running at the rate of two or three miles per hour, and that he stopped the train within three feet after he applied the airbrake. As we said upon the former appeal, the jury might have found that the engineer’s testimony and that-of the brakeman on this point was not wholly true. The evidence shows that Moore was a stout, active man, only thirty-one years of age, and it is not likely that he would have fallen under the wheels of the tender if it had only been going at the rate of two or three miles an hour and had been stopped within three feet. It will be remembered that the engineer testified that he saw something going over the tender, and immediately applied the brake. He then went back to look for his fireman. The jury might have inferred from this that the engineer saw the fireman fall from the rear end of the tender and knew that he would likely be hurt, for he immediately went back to look for him. The condition of Moore’s body and the fact that cinders and earth appeared to have been rubvbed into his wounds indicated that he was dragged for some distance after he fell from the tender. One of his gloves, with the ends of some of his fingers in it, was found about fifteen feet west of where his body was found. Some blood Was found on the rails still further west. This indicated that Moore’s body was carried under the tender for a much greater distance than three feet. The jury might have accepted that part of the engineer’s testimony which showed that he saw something fall from the back of the tender, and immediately stopped his train and went back to see if it was not his fireman. When he went hack, he did find the body of the fireman, all mangled, under the tender. From this evidence the jury was warranted in finding that the mangled condition of the body of the fireman, the fact that his glove with bits of finger in it was found fifteen feet west of where his body was, and the further fact that blood was found on the tracks still further west, indicated that the train was going* at a much greater rate of speed than that testified to ¡by the witness, and that, on account of the unusual rate of speed, the impact with the string of cars on the sidetrack was much greater. The jury might have inferred from the testimony that the fireman believed that the engineer would make the coupling just as he testified that he did make it, and that he felt that he could, with safety, go back over the tender with the bucket of compound and be ready to pour it in the tank when the engineer was ready to take water, and that, by reason of the coupling being made with an unexpected and unusual jerk or jar caused by the engineer running the engine and tender at an unusual rate of speed, the fireman lost his balance and fell from the tender. It is contended, however, that the undisputed proof shows that the bucket of compound was filled within an inch of the top, and that none of it had spilled out, which would have happened had the coupling been made at an unusual rate of speed or had it been accompanied by a sudden jerk. While the engineer and other witnesses testified that none of the bucket of compound appeared to have been spilled, this might not have been accepted by the jury as undisputed evidence. The question of whether any of the bucket of compound had spilled depended upon the recollection of the engineer and the other witnesses on that point. The jury might have found from the attendant circumstances that they had testified falsely on that point, intentionally, or perhaps due to a faulty memory. In other words, the undisputed facts show that the fireman was found with his body crushed and mangled under the tender, and that the engineer thought he saw something fall off of the rear end of the tender. In any event, he saw something fall off, and was so of the opinion that it was the fireman that he immediately applied the airbrake and stopped the train. The jury might have inferred,' as above stated, that this was caused by a sudden and unexpected jerk in making the coupling, and that some of the compound did spill out of the bucket, although the engineer testified to the contrary. It cannot be said as a matter of law that the fireman assumed the risk of going back over the tender, with a bucket of compound while the train was moving. The jury might have inferred that the fireman believed that thé coupling would be made in the usual way and would be attended by no danger to him, but, due to’the fact that he was in a hurry, the engineer ran the engine and tender with the four cars attached to it at a much greater speed than he thought he was, or at least at much greater speed than he testified to, and thereby caused a sudden and unexpected' jar or jerk of violence when the cars ran against the string of cars on the track. Therefore we think the question of the negligence of the defendant and the assumption of risk by the fireman were proper questions of fact to be submitted to the jury for its determination. It is next contended that the court erred in instructing the jury on the subject of assumption of risk. The court gave instructions Nos. 5 and 6, which are as follows : j “5. The deceased, Will Moore, by engaging in the defendant’s service, assumed thje risk of injury from all the ordinary and usual dangers and hazards incident to the employment in which he was engaged, but he did not thereby assume the risks of injury from any danger or hazard arising from the negligence of the other employees of the defendant. “6. Before the deceased-can be held to have assumed the risk of injury from any danger or hazard arising from the- negligence of any of defendant’s other employees, it must appear from a preponderance of the evidence that deceased knew of such negligence and appreciated the danger therefrom to himself, or that the danger from such negligence to deceased was so obvious that the deceased, in the exercise of ordinary care for his own safety at the time, must have known of such negligence, and appreciated the danger to himself therefrom. ” Counsel for the defendant insists that these should be treated as separate instructions, and that number 5 is erroneous because it takes away from the jury the consideration of whether, under the facts, the danger was so obvious and patent that the fireman must have known and appreciated it. It will be observed that these two instructions follow each other; and, from the language used, it is apparent that they should be read together, and, when so read together, they harmonize with each other. We cannot see how the jury could have been misled when the two instructions were read and considered together. Each one supplements the other, and they were doubtless so understood by the .jury as well as by the counsel for the respective parties in their .arguments to the jury. St. L. I. M. & S. R. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375; Kelly Handle Co. v. Shanks, 146 Ark. 208, 225 S. W. 302; and St. L. S. F. R. Co. v. Pearson, 170 Ark. 842, 281 S. W. 910. It is next insisted that the court erred in giving instruction number 12, which reads as follows: “If you find for the plaintiff, but do not find that the deceased was guilty of contributory negligence, you will fix the amount of her recovery at such sum as, in your judgment, from the evidence, will fairly compensate her, as the widow of the deceased, for the pecuniary loss, if any, which she has sustained by reason of the death of her husband, such amount not to exceed the amount sued for herein. In fixing such amount you may take into consideration her husband’s age, health, expectancy of life, and his earning power, and also the contributions, if any, which she might reasonably expect from her husband had be survived. If you find for plaintiff, and further find that her husband was guilty of some contributory negligence, you will reduce the damages recoverable by the plaintiff in proportion to the amount of negligence attributable to the deceased.” Counsel for the defendant insists that this instruction is contrary to the rule laid down by the Supreme Court of the United States in Kansas City Sou. Ry. Co. v. Leslie, 238 U. S. 599, and other cases on the subject. We do not agree with counsel in this contention. The language used in the instruction shows 'that the court expressly limited the right of the widow as a beneficiary entitled to recover to her actual pecuniary loss. The instruction is in accord with the rule on the subject laid down by the Supreme Court of the United States in the cases cited in St. L. S. F. R. Co. v. Pearson, 170 Ark. 842, 281 S.. W. 910, to which reference is here made, that the damages to he recovered by the widow are limited strictly to the financial loss sustained by her. Error is assigned in giving other instructions by the court and in refusing some asked by the defendant. We do not deem these assignments, however, of sufficient importance to warrant a separate discussion. It is sufficient to say that we have carefully considered them, and find them not well taken. The instructions given by the court fully and fairly submitted to the jury the respective theories of the parties. Finally, it is insisted that the court erred in allowing the plaintiff to give the testimony of Frank S. Johnson as shown by the bill of exceptions on the former appeal. There was no error in this respect. Johnson was a witness for the plaintiff on the former trial, and was examined and cross-examined at length. His testimony was taken down by the court stenographer in shorthand and transcribed by him in the bill of exceptions. Johnson has since died. Where it is shown that a witness is dead, his testimony given at the former trial between the same parties should be received as evidence. Railway Co. v. Sweet, 60 Ark. 550, 31 S. W. 571. But it is insisted that the court erred in allowing the cross-examination of Johnson to be read to the jury. There was no error in this. Vaughan v. State, 58 Ark. 353, 24 S. W. 885. In that case the cross-examination as well as the examination was held to be competent. ~We find no reversible error in the record, and the judgment will therefore be affirmed.