Myers v. Lamb-Fish Lumber Co.

Reed, J., delivered the opinion of the court. This is an action brought by appellants, the father and brothers of Earl S. Myers, against appellee, to recover for alleged wrongful death of Myers, resulting from injuries suffered by him while endeavoring to make a coupling of cars on appellee’s logging railroad. After all of the testimony had been introduced and both sides had rested, the court granted an instruction directing a verdict for appellee. Earl S. Myers was employed by appellee, and was at work on a logging train. It is in.testimony that he was a brakeman or flagman. Some of the witnesses say that he was a conductor. In discharging the duties of his employment, he undertook to couple a log car to an Illinois Central standard coal car, known as a “gondola,” and was crushed between the cars. He died in about thirty minutes after he was injured. Appellants contend that appellee company was negligent in failing to provide a safe roadbed and track for the use of its trains. It was shown that the roadbed at the place where the coupling was attempted was soft and soggy, as the result of water flowing from an artesian well near by and seeping into the track; that certain of the crossties at the same place had been burned from dumping hot cinders from locomotives on them; and that by reason of the condition of the roadbed from the water being on it and the cross-ties being burned the track would sink beneath the weight of a locomotive or car and render the coupling of cars uncertain and unsafe. Testimony was introduced by appellee to show that the track of its railroad was in general good condition. There was a clear conflict of the testimony on the question of whether or not the roadbed was in a safe condition and this question, involving the negligence of appel-lee, should have been submitted to the jury. W.e also find evidence pro and con on the questions of negligence by the appellee (1) in its failure to properly load the log [778] cars, and (2) in using cars whose drawkeads and couplers were of different heights. Counsel for appellee claim that it is not known how Myers was injured, that only two small bruises were shown on his body, that no surgeon examined him, and that he should have been more crushed or cut by the collision of the cars. The facts to us clearly show the cause of the injury. Myers, a young man, having just reached majority, in sound health, vigorous and strong, stepped between two cars to make a coupling. When the cars came together they did not meet and couple. On one car was a projecting’ log. A witness, who was employed on the same train and was at the- time near him, saw him go in between the cars. When the cars failed to couple, the witness saw him come out and lie down on a log. The witness went to him immediately, and found Myers in great distress and pain, and heard him say he was hurt and was going to die. Myers was carried to a house near-by and there in a very short time did die. These facts are too plain to admit a question as to how deceased was injured. True, the outward showing of the fatal injury was slight; and true, no one saw him at the very moment he was struck. Nevertheless, it is beyond dispute that his death resulted from injury inflicted by collision in the running of appellee company’s cars. It is contended by the appellee that Earl S. Myers was a conductor, having the direction and control of the train which caused the injury resulting in his death; that it was his duty to couple the cars; and that, even if the coupling was unsafe, there should be no recovery for injury sustained by reason thereof. Appellee asserts that the provision in chapter 194 of the Laws of 1908, excepting conductors and engineers in charge of dangerous or unsafe cars or engines, voluntarily operated by them from the other provision in the statute that “knowledge by any employee injured of the defective or unsafe character or condition of any machinery, ways or appliances, [779] or of the improper loading of cars, shall not be a defense for an action for injury caused thereby,” is applicable to this case. We find in the record a clear conflict in the evidence relative to the employment by Myers at the time he was killed. Some of the witnesses call him a flagman or brakeman, and others say that he was a conductor. Some testify that he exercised the authority of a conductor. The proof shows that he was1 doing the work of a brakeman, coupling cars, when he was injured. Even if the statute excepting conductors should apply in this case, it cannot be said that the proof of his occupying ■ such position is beyond conflict, and that it was unnecessary to submit it to a jury. We do not see, however, that the statute is applicable to the facts of this case. The exception is as to conductors or engineers operating dangerous or unsafe cars or engines. It is not claimed here that the cars causing the injury were unsafe in themselves, or when used for the purpose for which they were constructed. There were no defects in the cars. They were each good for the purpose for which they were intended. The dang’er arose from the wrong use of the cars by appellee; that is, in moving and coupling cars whose drawheads and couplers were of different heights, upon a track which was soft and sodden and would sink under the weight of the cars. It is claimed that the roadbed was in an unsafe and defective condition. Appellee’s counsel, in their brief, argue that chapter 215 of the Laws of 1912, providing that the proof of injury inflicted by the running of engines, locomotives or cars shall be prima facie evidence of the want .of reasonable skill and care, etc., should not apply in this case, because the law was passed after the injury, which was on November 5,1910. The statute was in effect when this case was tried. We have held recently, and since the case at bar was appealed, that chapter 215 provides only [780] a rule of evidence, and does not deal with substantive rights, and is applicable in the trial of all cases after its enactment. Easterling Lumber Co. v. S. W. Pierce, 64 So. 461. We gather from counsel’s brief that the trial court did not apply this statute upon the hearing of this case. This should have been done. It was error to give the peremptory instruction for ap-pellee. The case should have been submitted to the jury. jReversed and remanded.