St. Louis & San Francisco Railroad v. Fithian

Kirby, J., (after stating the facts): It is insisted that the court should have directed a verdict in appellant’s favor; that there is not sufficient evidence that the derailment of the car was caused by any negligence or defective condition of the track or road bed, nor that the train was running at a rate of speed greater than was safe to operate it over that particular track and bridge. The evidence warranted the jury in finding that the track was not built in accordance with the accepted theory of railroad construction for the running of trains at a high rate of speed; the witnesses all testifying that upon a three degree curve there should be an elevation of the outer rail of from two and a half to three inches in order to make the track safe for such speed. Appellant’s experts testified that it was not practicable to make such elevations in the tracks in the yards and it could not be done when a switch or other track was required to lead out from it at a different curvature on the curve. From the whole testimony we do not think there was sufficient evidence of negligence in the construction and maintenance of the track and road bed to have warranted the verdict. The railroad company only owes to its employees the duty to use reasonable and ordinary care and diligence in the construction and maintenance of its tracks and bridges for the use and purposes for which they are constructed and which must be reasonably sufficient for the purposes intended. St. Louis & S. F. Rd. Co. v. Hill, 79 Ark. 76, and cases cited. The road has been in operation for thirty years and trains of every kind and class crossing this particular track for that time without accident. It was shown to have been constructed by a capable engineer and inspected daily by the section foreman and frequently by the road master and others. This evidence conclusively shows that appellant had amply discharged its duty of ordinary care to the deceased and its other employees in the construction and maintenance of its track and road bed. Tuttle v. Minn. R. R. Co., 122 U. S. 189; Sou. Pac. v. Seley, 152 U. S. 145; C. M. & St. P. v. Riley, 145 Fed. 137; Sou. Pac. v. Gloyd, 138 Fed. 388; McCormick v. I. C. R. R., 100 Fed. 250; Terre Haute Ry. v. Becker, 146 Ind. 218; Ry. v. Eubanks, 48 Ark. 460; Ry. v. Jaggerman, 59 Ark. 98; S. W. Tel. Co. v. Woughter, 56 Ark. 212; L. & N. Ry. Co. v. Bates, 146 Ind. 572. If, however, the jury believed the testimony relative to the speed of the train, as stated by some of appellee’s witnesses, upon the track, as constructed, as they evidently- did, we are not able to say that the evidence of negligence is insufficient to support the verdict. The rate of speed at which the train was going over the track, as constructed, appears to have been the question insisted upon for a recovery below. It was not complained that the speed was excessive, but that the rate of speed over the track, as constructed was not reasonably safe for and was dangerous to the employees engaged in the operation of the train, and constituted negligence on the part of the company. Boles, a civil engineer, was permitted to give an expert opinion upon his knowledge acquired from an examination of the track, and his information as to the distance the train ran before it stopped after it broke in two and the air brakes were automatically adjusted, upon the rate of speed at which it was going, and stated that it must have been running at twenty miles or more an hour, which was a dangerous rate for operation along that kind of a track. It is insisted that this testimony was incompetent, said witness not having been shown to ever have bad any experience in the stopping of trains under the conditions mentioned, and that it was prejudicial as tending to corroborate the testimony of the two women about the speed of the train and contradict all the others as to its speed and its having stopped at the crossing, and which this witness said it could not have done and acquired the speed at which it must have been going, considering the statements of the witnesses as to the distance it ran after the car was derailed and the train broke in two. It does not require the knowledge of an expert to determine the rate of speed at which a train is moving and any person of ordinary understanding and common observation seeing it in motion is competent to speak upon that question. Bowen v. State, 100 Ark. 236. Such being the case, however, does not preclude an expert who has particular skill and possession of professional knowledge acquired from the study and operation of trains from giving an expert opinion as to the speed at which a train was going, based upon the facts shown to exist at the time of its derailment, the grade of the road bed, the weight of the train, the point at which it broke in two and the air brakes became automatically adjusted, and the distance the engine and cars attached ran from the point of the break and the adjustment of the brakes until it stopped. This witness testified that he had had experience as an engineer in the construction of railroads; that he was the chief engineer for the Fort Smith Light & Traction Company, in the construction of its street railway system in the city of Fort Smith, that he had studied the conditions relative to the starting, moving and stopping of trains in order to qualify himself to build and construct tracks and roadbeds, upon which they should be operated; that in doing so, he had discussed the conditions under which trains could be stopped and the manner of doing so and all things that would have a bearing upon such questions, with men skilled in their operation, engineers, who actually operated the trains and moved and brought them to a standstill. Under the circumstances, we can not say that his training was not such as qualified him to answer the hypothetical questions relative to the speed of the train. It is also insisted that the court erred in permitting the expert witnesses to answer hypothetical questions relative to the proper construction of the main track upon the curve without taking into consideration the undisputed fact that a switch track led off from the main line at a different curvature near the bridge. It is true this Court has held that hypothetical questions upon which opinions of expert witnesses are taken must include all the material undisputed facts, and may include any of the other facts which either party may regard the evidence tends to establish. Ford v. Ford, 100 Ark. 518, 140 S. W. 995. These experts, however, were not answering hypothetical questions which failed to include the switch track construction, but gave their opinions upon conditions that they found reflected and to exist at the time of the accident from an examination of the place thereof after the occurrence, and it can not be said that they did not take into consideration the switch track as constructed since it was upon the ground at the time of their examination. It .was proper to permit the expression of their opinions under the circumstances and appellant could have tested their knowledge of the existing conditions and discovered whether this fact was taken into consideration by them in forming their opinions if it had desired to do so, upon proper cross examination. Ringlehaupt v. Young, 55 Ark. 133. The next contention is that the court erred in permitting the administratrix to testify as to the contributions to the support of herself and child received from said deceased husband. Our Constitution provides, “That in actions by or against administrators, executors, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement of the testator, parent, or ward, unless called to testify thereto by the opposite party.” Schedule section 2, Constitution 1874. This suit was brought under the Employer’s Liability Act and can not be maintained, except when brought by an administrator. 35 Statutes at Large, 65, Chap. 1, 49. American Railroad Company v. Birch, 224 U. S. 547. The recovery in this case, however, is for the benefit of the surviving widow and the minor heir, and the estate of the deceased person has no interest whatever in the recovery. The amount recovered can not be administered by the probate court in any other way than by an order for its payment to the party interested, or their guardian. The recovery is by the administrator, as a trustee, really, she being but a formal party. Conner v. N. Y. N. H. & H. Ry. Co., 28 R. I. 560; 13 Am. & Eng. Ann. Cases, 1033. Since the estate can not be charged in this suit and has no interest whatever in the recovery, our Constitution does not contemplate that the widow if she be the administratrix, shall not be allowed to testify concerning the contributions made to her by her husband before his death for the support of. herself and her minor child. Such contributions can not be regarded as transactions with the deceased within the meaning of said Constitutional provision that would bar her from testifying thereto because of the fact that she is the formal party to the suit as required by said Act of Congress, but in fact and effect only a trustee for the particular purpose of bringing the suit and not as administrator, within the usual sense in which it is employed in our statutes and'by our Constitution. Instructions numbered 13 and 14 were merely cautionary, and, conceding that they stated a correct rule of evidence on the subject, it does not appear that any prejudice could have resulted from the failure to give them. The expert witnesses testified, themselves, to the facts upon which they severally based their opinions, and if the jury did not accept as true the facts as thus related, they necessarily rejected the opinion of the same witnesses based on the statement of facts. It would have added little for the court to caution the jury that if they rejected the statements of facts made by the witnesses they should also reject the opinions based thereon. That is, practically, the substance of the instructions as applied to the circumstances of this case, and we think there is no likelihood that any prejudice resulted from the court’s failure to give those instructions, if conceded to be correct. If the opinions given by the experts had been based entirely on hypothetical questions, then probably some such cautionary instructions would have been necessary. We do not regard it necessary to discuss the other numerous assignments of error, and it will suffice to say that after a careful examination of the entire record, we have come to the conclusion that the testimony is sufficient to support the verdict of the jury that there was negligence upon the part of the appellant in the operation of its trains over the track, as constructed, at the rate of speed the jury might have found it was going at the time of the accident. Nor was it error to refuse to instruct the jury that the evidence would not sustain a finding that there was negligence in the construction and maintenance of the road bed and tracks, since the real question submitted was whether or not there was negligence of the company in the operation of the train at the unusual and dangerous rate of speed, at -which it was going, the track, as constructed, being considered. Finding no prejudicial error in the record, the judgment is affirmed.