Missouri Pacific Railroad v. Hancock & Buchanan ( 1938 )

Bakeb, J.

This is the second appeal of this case. The first is reported as Missouri Pacific Railroad Company v. Hancock, 187 Ark. 1007, 63 S. W. 2d 973. The statement made in that first appeal may be taken as a statement in the instant case. There is no real or essential difference except in the instant case the error complained of in the former appeal and upon which it was reversed does not appear.

Hancock testified that he and his traveling companion, Buchanan, were desirous of returning to their homes in Oklahoma and in the railroad yards of North Little Rock, at night, they accosted someone and asked about the time they might catch a freight train going from North Little Rock to Van Burén and were advised that the train would leave about 10:00 o ’clock. The conductor upon the train upon which they did ride testified that someone talked to him in the railroad yards and asked about what time the train would leave. Hancock also testified that before daylight the next morning, after leaving North Little Rock at 10:00 o’clock at night, he talked with a man who looked like a brakeman and who was carrying a lantern, such as they carry, and asked if they had reached Van Burén; that the brakeman answered that they were then about forty miles from Van Burén and it would take about an hour and fifteen minutes to get to that point. At the time he talked with that man lie was standing in the door of a box car where he and his companion had ridden during the night. He said this man with whom he talked climbed aboard the train and gave the starting signal. This testimony is denied, but the jury had a right to believe it and they found it to be true, so it must be said in consideration of the jury’s verdict that the employees of the train, or at least some of them, knew that Buchanan and Hancock, though they did not know their names, were riding in a box car.

We think there is only one conclusion to be reached about how this accident occurred, that is that there was a hot box, or journal upon one of the box cars, seven or eight cars back, or removed from the engine. Hancock testified about seeing’ this smoking and blazing journal box. Several other witnesses testified to the same effect. Among the number of those who saw it was the station agent at Alma, who gave a signal to the operators of the train. Others attempted to signal the engineer, fireman and conductor. This hot box was upon the left-hand side of the train as it moved forward. ' The railroad employees testified they did not see it. The fireman, whose position was upon that side, testified it was one of his duties to observe or watch to the rear, testified he did not see it. Some of the brakemen testified that they were in the cupola of the caboose, looking forward on the left-hand side and did not observe either the smoke or the fire from the hot box. The third or-swing brakeman testified that for a time, at least, he rode in what is called the dog house, the small box-like structure on top of the tender. Prom this position he looked back over the train and that it was his duty to observe anything wrong in the operation of the train. Just a short distance out of Van Burén this journal burned so as to break off and the wreck occurred in which young Buchanan was killed and Hancock somewhat seriously injured.

Some witnesses testified that flames from this hot box were two or three feet long. It is, also, shown that for some distance before the point was reached at which the accident occurred the railroad tracks were curved which gave those, who were in position to observe the condition of the train, both from the front and rear, better opportunities of seeing this fire or smoke from the hot box.

Several witnesses testified to this condition in addition to the plaintiff, Hancock, who also stated that from the door of the box car, where he and Buchanan were tiding, he could see the engineer and fireman in the engine cab. This was after daylight and perhaps only a short time before the wreck which occurred about 7:00 o ’clock in the morning. It is hardly conceivable that the conditions as testified to by these numerous witnesses as to flames and smoke were seen 'by the plaintiff and his companions, including Buchanan and others who had gotten into the car before the wreck and persons along the railroad tracks and at stations, and at the same time-not be seen by the railroad employees.

It is argued, perhaps with some degree of reason, that the railroad employees were attempting to run the last few miles, though the hot box was discovered, and get into the yards of Yan Burén where the yard crew would have to take care of the train with its hot box, rather than the crew in charge of the train upon the road;

Witness Duke, who was both a brakeman and conductor, though working as a brakeman, upon this particular train, testified “that it was the duty of the entire crew to fix a hot box on a train before it reached the terminal and that it was the duty of the car men to fix it at the' terminal; if this car would have reached the yard, the car men would have fixed the hot box and if it had gone a half mile further the train crew would not have had to fix it. ’ ’ So the jury might well have found, from the showing made, that the operatives of the train knew of this hot box with the blazing, smoking bearings, but chose to ignore it because there was only a short distance to go after it was discovered.

The appellant has submitted to us numerous decisions and authorities both from our own court and other jurisdictions, bearing upon the question of liability under the facts and circumstances proven. There is no necessity at this time for a discussion of any of them, as the law in this case was determined upon the former appeal. M. P. Rd. Co. v. Hancock, supra.

It can make no difference now whether the court, or even a majority agrees with the announcements made in the former decision. The law proclaimed there was not only binding at that time, but under the same "facts and conditions as they appear now the same declaration of law is applicable.

Appellant argues the insufficiency of the evidence to sustain the judgment under several different headings, the principal one of which is that it properly moved for a directed verdict.

It is also argued that the appellant demurred to the evidence. It is also argued that the evidence is not sufficient to sustain the verdict.

Although our courts do not recognize the practice of a demurrer to the evidence, the same result is.reached by appellant’s other objections and the request for the directed verdict if that remedy were available at all. It is not, however, under the circumstances as before, stated.

The only other question argued seriously is that the judgment in favor of the plaintiffs had written into it the insertion of a lien against appellant’s property. The statutes justify the lien.

Appellant, incidentally, also calls attention to the fact that the verdict of the jury for George Buchanan and Flo Buchanan, appellees, was for the benefit of the estate of the deceased son, "Willis Buchanan, who was killed in the same wreck in which Hancock was injured. That matter was not raised before the trial court in any' manner.

There seems to be no objection to the form of the verdict. Attention of the trial court is not called to this particular matter in the motion for new trial. It is too late to raise it here for the first time. Although this case must be affirmed upon the showing made here, the writer and Justices McHaNey and DoNham desire to disclaim approval of the application of the law of discovered peril as applied in this case, but is impelled to do so on account of the announcements in prior decision and only on that account.

The judgments are affirmed.

GeiefiN Smith, C. J., dissents. McHaNey and DoNham, JJ., concur.