Warren & Ouachita Valley Railway Co. v. Waldrop , 93 Ark. 127 ( 1909 )

Wood, J.,

(after stating the facts). First. Unless the engineer was “taking slack,” as explained in the evidence, he was negligent in backing the cars over Waldrop. For the evidence shows that, in order to move back after his train had started forward (unless he was merely taking slack), it was'his duty “to get the consent of the crew,” as one of the witnesses expressed, it. Where he is not “taking slack,” he should not move back without a signal. He should give the “back-up” signal, consisting of three short blasts of the whistle, the purpose of which was a warning to the crew. It was- also the duty of the engineer to keep a lookout for the safety of his co-employees, if for any purpose other than “taking slack” he moved his engine back after having first started same forward. Little Rock & H. S. W. Rd. Co. v. McQueeny, 78 Ark. 22; Kansas City So. Ry. Co. v. Morris, 80 Ark. 528; St. Louis, I. M. & S. Ry. Co. v. Standifer, 81 Ark. 278; St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61; St. Louis, I. M. & S. Ry. Co. v. Puckett, 88 Ark. 207.

Appellant concedes that none of these precautions were taken, and for the reason it- contends that the train was not backed except for the purpose of “taking slack.” Therefore, the negligence of appellant is established if the evidence is sufficient to show that the engineer was not “taking slack.” On the other hand, if he was “taking, slack,” the appellant was not negligent and is not liable. It has been a very close question with us to determine whether or not the evidence was sufficient to warrant a finding that the engineer at the time he backed the cars down upon Waldrop was “taking slack.” We have finally reached the conclusion that the evidence, the material parts of which we have set forth at length in the statement, was sufficient to warrant the verdict. The jury might have found that the engineer had moved the two cars, to which his engine was attached, a greater distance than was necessary for “taking slack” before he commenced to back them. The testimony of -the witnesses for appellee, giving it its strongest probative force in her favor, tended to show this. After the engine started forward, Waldrop had time to go the entire length of a car, to go between them and to stoop over to connect the air hose before the cars came back upon him, tending to show that the engine must have gone forward more than a very few feet.

While the witnesses could not tell in feet the length of space the cars went forward, and did not undertake to estimate it because it was done so quickly, yet one of them who. stood to one side said that it must have been more than two feet, and might have been “a half-car length.” He remembered seeing the “light space,” and he was standing about forty or forty-five feet (“hardly a car length”) from where the cars came together, and down the track in the direction they started, and about thirty yards away. While he says he thought they were “taking slack,” he describes the forward movement and the “light space,” and gives the jury room to conclude from bis testimony that the cars “might have- gone forward as much as half a car length.” The other witness, who stood some one hundred yards directly in front of the train, saw the engine, he thought, go forward and stop. He says it came a very little distance toward him before it stopped; then it went back. In view of evidence in the record to the effect that only eighteen inches backward movement would be sufficient to take up all the slack in the two cars, the jury were warranted in finding from the above evidence that the engineer had moved his train forward a sufficient spacé to give it momentum and to make the “taking of slack” unnecessary, and that when he stopped his engine after starting same forward, and then backed same, this latter movemefit was not necessary for the “talcing of slack,” whatever else might have been its purpose. The jury might also have found that the backward movement was not “taking slack” because the impact with the two coaches caused them to move about a car length, dragging the body of Waldrop and finally running over and crushing his arm. This, too, notwithstanding, the brakes were set loosely to keep these coaches from moving of their own weight down the track. That the mere “taking of slack” would not have caused this unless the engineer had lost control of his engine, of which there is no evidence. There was testimony in the record by the witnesses for the .appellant, experts, that warranted the jury in concluding- that an engine of the size and in the condition of the one under consideration could move always (barring accidents) from a dead stop at least as many cars as were attached to his engine. If the engine had moved forward as much as a half-car length, as the jury might have found under all the evidence, then, according to practically all the testimony of the experts, it was wholly unnecessary to stop tíre engine and to “take slack.” Having gone that far forward, the train would continue to move in that direction unless stopped and set in motion in the opposite direction for some other purpose than “taking slack.” It could not be useful to farther discuss .the evidence. It suffices to say that it was a question of fact for the jury as to whether appellant was negligent in the manner alleged in the complaint. It was also a jury question as to whether Waldrop was guilty of contributory negligence. These questions were submitted, upon correct instructions.

Second. The court did not err in refusing to abate the action until appellee should give bond for costs. Sections 959, 960. 961, Kirby’s Digest, do not apply to an administratrix in this State^* She bad given a bond as administratrix, and she was not liable personally for costs in a suit brought in her fiduciary capacity. See by analogy Johnson v. Duval, 27 Ark. 599; Tucker v. West, 31 Ark. 647. The removal of appellee to Missouri did not, ipso facto, revoke her letters as administratrix. The probate court had not revoked her letters, and the fiduciary status in which she sued she still retained in Arkansas. McCrary v. Taylor, 38 Ark. 393.

Third. There was no prejudicial error in giving appellee’s fifth prayer.^† Appellee was before the jury. They could judge of her probable expectancy from her appearance. If the instruction was defective in omitting this idea, the appellant could, and should, have reached it by specific objection. Appellant in a separate prayer should have presented this feature if it intended to insist on it here. It is difficult to conceive that a sensible jury would make an allowance to extend beyond the time when the beneficiary of such allowance would probably foe dead. They were to find, under the instruction, the amount he would have contributed to her, and of course he could not have contributed to her after s-he was dead. The instruction is not like that condemned in Fordyce v. McCants, 51 Ark. 509.

There was no prejudicial error in giving appellee’s prayer number eight.^‡ This prayer must be considered in- connection with appellant’s prayer number eight.^§ The two instructions correctly declared the law applicable to the evidence in the case. It is undisputed that the engineer did not have to keep a lookout if he was only “taking slack.” The instruction could only have referred to his duty if he was backing his engine for some other purpose.

Fourth. The verdict was not excessive. This case is unlike the case of St. Louis, I. M. & S. Ry. Co. v. Caraway, 77 Ark. 405, where the court held the verdict excessive, because there was no evidence in that case to show the amount that the deceased in his lifetime had contributed to his wife.

Here the evidence shows the amount, and, when the jury considered, as they must have done, the probable increase in the earning power of one who was in the line of promotion, and who from his character and habits would deserve it, we are- of the opinion that the verdict under the evidence was not excessive.

The judgment is therefore affirmed.

* Sections 959,-960 and 961 of Kirby’s Digest read as follows:

“959. A plaintiff who is a non-resident of this State, or a corporation other than a bank created by the laws of this State, before commencing an action shall in the clerk’s office file a bond, with sufficient surety, to be approved by the clerk, for the payment of all costs which may accrue in the action in the court in which it is brought, or in any other to which it may be carried, either to the defendant, or to the officers of the courts.

“960. An action in which a bond for costs is required by the last section, and has not been given, shall be dismissed on the motion of the defendant at any time before judgment, unless in a reasonable time to be allowed by the court after the motion is made therefor such bond is filed, securing all past and future costs; and the action shall not be dismissed or abated if a bond for costs is given in such time as the court may allow.

“961. If the plaintiff in an action, after its institution, becomes a non-resident of this State, he shall give security for costs in the manner and under the restrictions provided in the preceding sections of this chapter.”

† Appellee’s fifth prayer, which was given by the court, was as follows:

“5. If you find for the plaintiff you will assess the damages at such amount as will fairly compensate deceased’s widow and -estate for such damages as is shown by the proof to have been sustained by each, if any, caused by the injury and death ofi G. A. Waldrop, allowing the widow such amount of pecuniary damage as she has suffered, if any, by reason of the injury and death of her husband, basing such damages on the present value of the amount that in your judgment deceased would have contributed to the support and well-being of his wife during his lifetime, having regard to the probable duration of his life, the amount he has customarily contributed to the support and well-being of his wife, if anything, and what, in your judgment, he would have contributed to her during the remainder of his life but for the accident causing his death, taking into consideration the age, health, habits, expectation of life, mental and physical capacity for and disposition to labor, and the probable increase or diminution of that ability with the lapse of time, his earning power and rate of wages, and you will award his estate such amount of damage as will fairly compensate for the mental and physical pain and suffering endured by the deceased, if any, between the time of his injury and the time of his death.”

‡ Appellee’s prayer number 8, given by the court, was as follows:

“8. If you find from the evidence that the engineer was guilty of negligence in failing to keep a lookout when he backed his engine, and such failure, if any, was the proximate cause of the injury to the deceased, and deceased was free from contributory'negligence, your verdict will be for the plaintiff.”

§ Appellant’s prayer number 8, given by the court, 'was as follows:

“8. While it was -the duty of the engineer to keep a lookout, the law-only requires him to keep such a lookout as is consistent with the performance of his duties in handling the engine. If it was necessary for tiim to turn around and thus momentarily prevent him from keeping a lookout, the company cannot be held guilty of negligence on account of such momentary failure to keep a lookout.”