Payne v. Stockton

Hart, J. (after stating the facts). .Appellee first sued Walker D. Hines, as Director General of Railroads and Special Agent Texas & Pacific Railway Company, and J. L. Lancaster, and Chas. T. Wallace, receivers of and for the Texas & Pacific Railway, defendants. The suit was filed and summons issued on May 7, 1920. In open court on June 7,1920, the defendants just named, through their attorneys, KJLng & Mahaffey, filed a motion to strike out certain paragraphs of the complaint. On the 10th day of September, 1920, the record shows that this motion was sustained in part and overruled in part. The judgment recites, that both parties appeared by their attorneys on the hearing of the motion to strike out certain paragraphs of the plaintiff’s complaint. Subsequently the same defendants filed an answer and a demurrer to the complaint. They also allege that Congress passed what is known as the transportation act, which was approved by the President on February 28, 1920; that, under the provisions of this act, suits arising out of the management, control or operation of railroads in the United States should be prosecuted against an agent to be designated and appointed by the President; that the President had appointed John Barton Payne as such agent; that the accident which is the basis of this lawsuit occurred about the 1st of December, 1919. The defendant suggested that, if the plaintiff desires further to prosecute his action, he must cause John Barton Payne, Agent, ;as aforesaid, to be made a party defendant. The prayer is that the action be no longer maintained against Walker D. Hines, as Director General of Railroads. Then the plaintiff .asked that John Barton Payne be substituted as agent for the United States in the place of Walker D. Hines, which was accordingly done. John Barton Payne, Agent, by his attorneys, King & Makaffey, filed a plea to the jurisdiction of the court on the ground that he had not been served with process. His plea was overruled, and he thereupon adopted -the answer of Walker D. Hines, Director General, but preserved his protest to the jurisdiction of the court. This court has adopted the rule that any action on the part of a defendant, except to .object to the jurisdiction which recognizes the case as in court, will amount to a general appearance. Foohs v. Bilby, 95 Ark. 302; Greer v. Newbill, 89 Ark. 509, and Sager v. Jung & Sons Co., 143 Ark. 506. Hines, as Director General, and Lancaster and Wallace as receivers of the railway company, filed a motion to strike out certain paragraphs .of the complaint- and appeared, by their attorneys, at the hearing thereof without making any objection to the jurisdiction of the court. Thus they took part in the proceedings in the case, and this constituted a general appearance on their part. Subsequently their attorneys called the- court’s attention to the fact that the transportation act, approved February 28,1920, provided that actions at law based on causes of action arising out of the possession, use, or operation by the President of the railroad under the provisions of the Federal control act of such character as prior to Federal control could have been brought against such carrier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, and stated that John Barton Payne had been appointed as such agent. Therefore, they ask that he be substituted in place of Walker D. Hines, Director General, as defendant. This was done without requiring new service on John Barton Payne. The same attorneys appeared for him, and moved to dismiss the cause of action for want of service on him. We do not think, however, that any new service was necessary. The object of the suit was to bring an action against the United States. The United States employed the same attorneys to act for John Barton Payne as had acted for Walker D. Hines as Director General. When these attorneys entered the appearance of Walker D. Hines, as Director General of Railroads and Special Agent, they entered the appearance of the United States to the suit, and the substitution of John Barton Payne, Agent, instead of Walker D. Hines, Director General of Railroads, was merely to correct an error in the name of the representative of the United States. King & Mahaffey were the attorneys for the agent of the United States, and had authority to 'enter the appearance of the agent designated by the President. At least their authority to enter the appearance of such agent is not questioned. Therefore, we are of the opinion that, when they filed the motion to strike out certain paragraphs .of the complaint and appeared at the hearing thereof, they entered the appearance of the United States agent who was authorized to defend the action, and that the substitution of Payne for Hines was merely to correct a mistake in the name of said agent. The railroad had been turned over to the receivers at the time this action was brought. As we have already seen, tliey entered a general appearance to the action when they joined in the motion to strike out certain paragraphs of the complaint and appeared by their attorney at the hearing thereof. This court has held that under the Federal control act of March 21, 1918, authorizing actions against the “carriers,” an action may be properly brought against the railroad itself as well as the Director G-eneral of Railroads. Hines v. Mauldin, 146 Ark. 170, and K. C. S. Ry. Co. v. Rogers, 146 Ark. 232. It is clear that the transportation act of February 28, 1920, was not intended tb destroy vested rights of action, or to authorize the President or his agents to do so. The sole purpose of the act, as shown by its terms, was to provide for the designation of an agent by the President who might be served as an agent of the United States and defend suits which had arisen out of the operation of the railroads by the President. It did not purport to destroy any right of action which the claimants might have had before the transportation act was passed. The principal question in the case is as to the liability of the railroad company. Section 8483 of Crawford & Moses’ Digest provides for constructing and maintaining railroad crossings across public roads in this State. It makes it the duty of the railroad company to construct such crossings in such way that the approaches to the roadbed on either side shall be made and kept at no greater elevation or depression than one perpendicular foot for every five feet of horizontal distance. The section further provides that such railroad may be crossed by a good and safe bridge to be built and maintained in good repair by the railroad company. In construing this statute in St. Louis, I. M. & S. Ry. Co. v. Smith, 118 Ark. 72, the court held that it is the duty of every railroad company to properly construct and maintain crossings over all public highways on the line of its road in such a manner that the same shall be safe and convenient to travelers, so far as it can do so without interfering with the safe operation of the road. The court also held that it was the duty of the railroad company to use ordinary care to keep public crossings over its tracks in a reasonably safe condition for persons traveling over them. Hence it may be said that in this State a railroad company is liable for injuries to persons or property caused by its negligence in constructing or maintaining crossings or bridges where the railroad crosses a public highway in this State. The negligence of the railroad company in this respect was properly submitted to the jury by the instructions given by the court. At the crossing in question in this case, there was a wooden bridge seventy-two feet long over the tracks of the railroad company. A fence, or railing, was built along on top of the bridge on each side of it and extended down the approaches to the bridge. The fence on each side of. the approaches had a bulkhead to keep the dirt in the embankment from giving away. The embankment had got out of repair by caving so that the fence extended out at an angle of about forty-five degrees and there were holes along the embankment where the bulkhead had caved away. As the team was turned down the embankment or approach to the bridge the driver had to turn the horses to the right to pass another wagon. This brought the wagon near the edge of the embankment and dirt caved away allowing the wagon to slide down into the ditch. The wagon was partially loaded, and this caused the horses to be dragged down into the ditch, and the feet of one of them to become entangled in the fence. This caused the injuries to the horse from which it subsequently died. As we have already seen,- it was the duty of the railroad company to construct the crossing and keep it in repair. The statute makes the duty a continuing one and thereby shows that protection to travelers and their property was the dominant idea of the Legislature in enacting the statute. Therefore, we think that the facts of the present case, as proved by the witnesses for appellee, warranted the jury in finding the railroad company guilty of negligence in maintaining the bridge and approaches thereto where the appellee’s horse was injured. It is next insisted that appellee is not entitled to recover because it is claimed that the horse was injured outside of the right-of-way of the railroad company. The record shows that the fence from the bridge down the incline or approach to the bridge was on the right-of-way. The record shows that the wagon slipped and dragged the horses down so that one of them became entangled in the fence, and it is urged that this accident occurred beyond the southern boundary line of the right-of-way of the railroad company, and that therefore the railroad company is not liable to appellee. The statute provides that the approaches to the bridges or crossings shall be kept at no greater elevation or depression than one perpendicular foot for every five feet of horizontal distance. Crossings are constructed for the purpose of enabling persons, horses and vehicles to cross the railway tracks, and approaches or embankments are necessary to enable the traveler to get on or off the crossings. Therefore, such approaches or embankments as are reasonably necessary to enable the crossings to be used are regarded as a part of the crossings. This view is necessary to enable the company to fulfill its obligations to the public, and is essential to the safety of persons and vehicles crossing the railroad tracks at such highway crossings. Elliott on Railroads, (2 ed.), vol. 3, sec. 1097, and 33 Cyc., pp. 273-75. Finally, it is insisted that the judgment should be reversed because the court refused to give an instruction to the jury to the effect that the railroad company will not be liable if appellee knew that his horse had been injured and turned him out so that his death was caused by lack of due care or attention on his part. On this point, it is sufficient to say that there is no evidence upon which to predicate such an instruction. The undisputed evidence shows that the boys turned the horse out without telling their father about his injury. The father was not told about the injury to the horse until late the next day. He at once began to hunt for the horse and found him lying dead. The evidence is undisputed on this point. There is no. prejudicial error in the record, and the judgment will be affirmed.