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in the nature of a flat car, and that part of the floor of this car between the tank and the outer edge was the only walkway or passageway over this tank car. The tank car had side rails on the outer edges of the side of the car which lacked 24 inches coming to the end of the frame of the car. The only appliances furnished the brakemen to pass from the top of the S. F. R. D. car to the tank car was a side ladder on the end thereof. One had to step from this side ladder onto the end of the tank car and grab to the end of the side rail on said car. From the side ladder to the nearest end of the side rail was about 5 feet. There was no end ladder on the S. F. R. D. car and no grabirons on the end of that car except down near the bottom of the car, which was used by the brakemen in coupling and uncoupling cars. There were no end ladders or grabirons on the tank car at all except on the sill below the floor. There was nothing on the end of the tank car for the brakemen to hold to while making the passage except the end of the side rail. It was necessary for brakemen, in passing from the sideladder on the S. F. R. D. car to the tank car, while the train was in motion, to release his hold on the former before he was able to secure a handhold on the rail

ing on the tank car.

It was shown that the train would have to go a quarter or a half mile after starting before it could get under good headway. The appellant excepted to the rulings of the court in admitting and excluding testimony. The appellant presented 97 prayers for instrucOf these the court refused all but

tions. seven.

The

The court granted ten prayers for instructions on behalf of appellee, and gave eight instructions of its own motion. appellant excepted to the rulings of the court in refusing its prayers for instructions, and also excepted to the rulings of the court in granting the prayers of appellee for instructions and to the giving of the instructions by the court of its own motion. The jury returned a verdict in favor of the appellee for $25,000. The court caused a remittitur to be entered in the sum of $7,000, and overruled appellant's motion for a new trial, and entered judgment in favor of the appellee for the sum of $18,000, from which this appeal has been duly prosecuted. Other facts stated in the opinion.

James B. McDonough, of Ft. Smith, for appellant. Sam E. Leslie and W. P. Feazel, both of Nashville, for appellee.

WOOD, J. (after stating the facts as above). [1] I. The court did not err in denying the petition for removal to the federal court. St. L. & S. F. Ry. Co. v. Conarty, 106 Ark. 421, 155 S. W. 93; K. C. Sou. Ry. Co. v. Cook, 100 Ark. 467, 140 S. W. 579.

[2] II. The complaint alleged that the appellant was negligent in not providing ladders and grabirons on the ends of the cars

one car to the other, and that appellant was negligent in the manner of making up its train by placing the tank car next to a high car, and that appellant was negligent in that its engineer handled his engine in such manner as to cause the train to unnecessarily and violently lurch and jerk, and that the negligence in failing to provide necessary handholds, ladders, or other appliances to enable the brakemen to pass safely from one car to the other, concurring with the alleged negligence of the engineer, caused the injury to Old of which the appellee complained. These allegations were sufficient to state a cause of action against appellant.

[3] The court did not err, therefore, in overruling appellant's motions to strike, and to make more definite and certain, and in overruling the demurrer. While some portions of the complaint were redundant and the pleader entered into unnecessary detail of description, the complaint for that reason was not defective, and there was no prejudicial error in refusing to strike out such unnecessary allegations.

[4] It is not in best form to enter into tion than is necessary to advise the defendmore specific detail in stating a cause of acant of the particular grounds upon which These grounds should be stated with as much the complainant seeks to hold him liable. definiteness and certainty as possible, but more specific details are not required and are matters to be developed by the testimony. See Little Rock & Ft. S. Ry. Co. v. Smith, 66 Ark. 278, 50 S. W. 502.

[5, 6] III. The appellant contends that the amended complaint was filed within less than ten days before the beginn of the term of court, and that the amended complaint stated new causes of action, which entitled appellant to a continuance. The alleged new causes of action are: First, "that there were no grabirons or handholds on the end of the oil car or tank car immediately in front of the refrigerator car, or any other appliances thereon, to enable brakemen in passing from the rear car to the oil or tank car to hold to and steady themselves while making said passage." Second, "that the engineer of said defendant was negligent on the occasion of plaintiff's injury in permitting his air to become out of order, or in carelessly manipulating his air in such manner that said train was caused to jerk violently and unusually, which jerking contributed to the injury of plaintiff's deceased, as aforesaid."

On account of the alleged new cause of action in regard to the tank car, the appellant set forth that: "It was impossible for the defendant to get a fair trial herein without having sufficient time to fully investigate the history especially of said tank car. It is absolutely necessary for a fair trial herein that defendant have time enough to get the complete history of each

of the injury.

meet the plaintiff's proof on the subject." the alleged jerking of the train at the time The appellant further set forth that "defendant cannot safely go to trial without the full history of each refrigerator car in controversy, so as to enable the defendant to ascertain whether or not the cars were in service before July, 1911."

Appellant says that the same witnesses who testified that there was trouble with the air on certain cars of the train before the same reached Page also showed that the cars in which there was a defective condition as to the air were set out of the train before it arrived at Page, and therefore the defective condition in those cars could not have been competent to show that the jerking of the train at the time of the injury was caused by a defect in the air in these cars. If, as counsel say, "the witnesses who testified to the trouble testified that the cars were set out on account of the trouble, and that there was no trouble at Page," then the testimony could not be prejudicial to appellant for the reason that the jury could not have concluded that those cars were in the train at the time of the injury. But, conceding that there was testimony to the effect that the air on some of the cars in the

train was defective, that the testimony was competent at the time it was offered as tending to show that this defective condition caused the jerking of the train, if the testimony was afterwards rendered incompetent because it was shown that these cars were

removed before the injury occurred, then appellant, after this testimony was introduced,

should have moved to exclude the testimony after its incompetency had thus been made to appear. The appellant simply rested on the objection that it made to the testimony at the time it was offered, and it is not in an attitude to complain because the testimony at that time was clearly competent and relevant to the issue. Moreover, the court told the jury that the plaintiff would not be entitled to recover if the death of Old occurred from any negligence of the defendant other than that alleged in the complaint. The negligent jerking of the train was al

It will thus be seen that these allegations of negligence as to the engineer set up in the amended complaint did not introduce any new or original cause of action, but were only a different method of stating a cause of action that had already been set forth. Furthermore it was surplusage for the pleader to alleged to have occurred at Page. The effect lege the specific causes or conditions that of the instruction was to limit the jury to a caused the violent and unusual jerking. It consideration of the conditions of the cars was entirely sufficient to have alleged that in the train at the time of the alleged injury the engineer of appellant was negligent in at Page. causing a violent and unusual jerking of the train which caused and contributed to the injury of the plaintiff, without setting forth the particular defects or conditions that caused such jerking. These were matters to be developed by the testimony, and the appellant had sufficient notice under the general allegations of negligence caused by a violent and unusual jerking of the train to require it to make all investigation it deemed necessary to meet such allegation.

There was no prejudicial error in overruling the motion for a continuance on these grounds, for, at the trial, it was shown, without objection, that the defendant had made investigation and was familiar with the history of both of the S. F. R. D. cars in controversy and also the tank car. It was shown, without objection, by witnesses who were familiar with the history of these cars, that they were in the service prior to July, 1911, and that they had not been sent to the shop for general repairs since that date. It thus appears that at the trial the appellant had the benefit of the testimony which in the motion for continuance it had asked time to enable it to procure.

In regard to the alleged negligence of the engineer in permitting his air to become out of order, appellant contended that it should have had an opportunity "to look into the air on each of the 51 cars in the train, and that it would require time to do so."

The original complaint alleged that "the air on the train failed to work properly, and

the train could not therefore be handled or controlled properly," and that "because of the defective condition of the air as afore said said train began jerking and swaying violently and so continued until plaintiff was injured."

[7, 8] IV. Appellant urges that the court erred in permitting members of the train crew to testify that they had some trouble with the air appliances on the train. Appellant contends that this testimony was incompetent, and also that it was prejudicial for the reason that it authorized the jury to

[9-11] The court permitted, over the objection of appellant, certain witnesses to testify that they had observed the equipment furnished by railroads in this country as to ladders and handholds on box and refrigerator cars, and that from 50 to 75 per cent., and a greater per cent. of refrigerator cars, were equipped with ladders and handholds on the end of the cars, and that in their opinion it was much safer for brakemen on cars thus equipped to pass from the top of a high car to the platform of a low car than it was to pass from high to low cars that have only ladders or handholds on the side of the car near the end as was the case with the cars complained of. The witnesses qualified as experts by showing that they had been engaged in train service as brakemen

they were familiar with the method in which, them. The fact that the Interstate Comthe cars are equipped in order to enable them merce Commission postponed the time for to perform their duties. equipping the cars that were then in service did not relieve the appellant of the duty of exercising ordinary care to furnish its employés with safe appliances, and to provide them a safe place in which to do their work. The Interstate Commerce Commission was without power to exempt the carrier from liability caused by its negligence. [13] V. Witness Clayton testified that he was a locomotive engineer, with 17 years' experience. On his examination in chief he testified that he was the engineer in charge of the engine on the train at the time Old was injured. He testified that there was no lurching or jerking of the train; that the engine and the air were in good condition and were working all right. On crossexamination he was asked the following question: "Assuming that there was violent lurching and jerking of the train, what, in your opinion, could have caused it?" His answer was: "It could only have been caused by the engineer letting off too much steam." The appellant objected to the testimony, on the ground that it was incompetent and irrelevant. Appellant did not object on the ground that it was not responsive to the examination in chief. Testimony had been introduced tending to prove that after the train began moving out of Page there was a violent and unusual jerking. It had been shown, also, that the engine and the air were in good condition, and that the train had moved out upgrade more than 100 yards, tending to show that the slack had been taken out.

Appellee had the right to show, from the opinion of an expert, assuming that the circumstances as detailed were true, that the violent jerking of the train was caused by the engine letting off too much steam. It was a question for the jury, under the testimony, to determine whether or not there was a jerking of the train, and, if so, what caused it. See Midland Valley Ry. Co. v. Lemoyne, 104 Ark. 327-341, 148 S. W. 654.

Appellant contends that, in the absence of a statute requiring railroads to place handholds or grabirons on the ends of their cars, there is no duty upon the railroad company as between it and its employés to place such handholds thereon, and therefore evidence showing that there were no such appliances does not tend to show negligence. It was the duty of appellant, regardless of any statute prescribing how freight trains should be equipped for the safety of employés, to exercise ordinary care to furnish such employés with a reasonably safe place in which, and with reasonably safe appliances with which, to work. See Railway Co. v. Holmes, 88 Ark. 181, 114 S. W. 221; Wilcox v. Hebert, 90 Ark. 145, 118 S. W. 402. The testimony was competent on the issue as to whether or not appellant was negligent.

In Oakleaf Mill Co. v. Littleton, 105 Ark. 392, 151 S. W. 262, we held that the test of a master's duty in furnishing appliances and a place to work is what a reasonably prudent person would have ordinarily done in such a situation, and proof of what was the custom of others under like conditions and circumstances is evidence, but not conclusive, of what a reasonably prudent person would ordinarily do.

In the recent case of St. L., I. M. & S. R. Co. v. Hempfling, 156 S. W. 171, we held that the failure of the company to provide grabfrons or handholds necessary for the reasonable safety of brakemen in the performance of their duties in passing from one car to another was actionable negligence. It was the duty of appellant to exercise ordinary care to equip its train with such appliances in the way of ladders, grabirons, and handholds as would furnish its employés with reasonably safe appliances to do their work, and, if appellant did not exercise such care to equip its cars with such appliances as were in common use by other railroads on similar cars similarly situated, evidence of [14] VI. Appellant next urges that the court this fact would be proper for the consider- erred in refusing to direct a verdict for the ation of the jury in determining whether defendant. This we consider the most diffior not appellant was negligent. See Dooner cult question in the case, and it has given v. Del., etc., Canal Co., 164 Pa. 17, 30 Atl. us the greatest concern; but we are of the 269. opinion that the case cannot be distinguished

[12] There was no error prejudicial to ap-in principle on the facts from the recent caspellant in refusing to permit it to show that es of St. L., I. M. & S. Ry. Co. v. Owens, 103 under the rules of the Interstate Commerce Ark. 61, 145 S. W. 879, and St. L, I. M. & S. Commission appellant was not required to R. Co. v. Hempfling, supra. In the latter put handholds on the ends of the cars com- case, after reviewing the evidence and the plained of until July 1, 1916, unless the cars authorities, we said: "The death of Hempwere shopped for general repairs. This rul- fling was consistent only with the conclusion ing of the court was not prejudicial to appel- that he fell from the car by reason of the lant, because the effect of the testimony was fact that he had no grabirons by which to only to show that in the opinion of the Inter hold as he was attempting to pass from the state Commerce Commission it was neces- twelfth to the thirteenth car, as mentioned sary for cars like the one under consideration in the testimony. The jury were not invited to to be equipped with handholds or end lad- guess, without any proof, as to the probable ders in order to insure as far as possible the cause of Hempfling's death. The law is well

to the injury and the cause thereof is not established by affirmative or direct proof, then all the facts established by the circumstances must be such as to justify an inference on the part of the jury that the negligent conditions alleged produced the injury complained of. Where such is the case, the jury are not left in the domain of speculation, but they have circumstances upon which, as reasonable men, they may ground their conclusions. Negligence that is the proximate cause may be shown by circumstantial evidence as well as by direct proof." In quoting from the Supreme Court of Missouri, we further said: "In actions for damages on account of negligence, plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature, and are so connected and related to each other, that the conclusion therefrom may be fairly inferred."

Applying these principles to the facts in hand, we are of the opinion that the jury were warranted in finding that the death of Old resulted through the negligence of appellant in causing the violent jerking of the train, which, concurring with its negligence also in not equipping its cars with necessary ladders, grabirons, or handholds on the end thereof in order to enable Old to pass from the S. F. R. D. car to the tank car, caused him to fall between said cars and produced his death.

wounds that Old received, and the position in which his body was found, warranted the jury in finding that the only opening through which Old could have fallen was between the refrigerator car and the tank car. It was shown that to make the passage between the refrigerator car and the tank car the brakeman would have to come down the ladder on the right-hand or east side of the refrigerator car. This ladder stood out from the body of the car 2 or 21⁄2 inches and was about 4 to 6 inches from the corner of the car. To get on the tank car from this ladder, the brakeman would have to throw himself around the corner of the refrigerator car and step diagonally across on the platform of the tank car, and catch to the side railing on the outer edge of the tank car. This railing on the tank car was 24 inches from the end of the tank car, making a distance of 5 feet from the side ladder or handhold on the refrigerator car to the nearest appliance on the tank car that a brakeman could use as a handhold. To make the passage he would have to release his handhold on the refrigerator car in order to secure a handhold on the side railing of the tank car. He could only pass from the refrigerator car to the tank car by stepping around the corner of the refrigerator car diagonally towards the center of the tank car. The position that his body was in, the manner in which his legs were injured, the fact that his legs were cut off by the wheels between the feet and the knees, and the fact that the feet were on the outside of the east rail, about the distance of the side ladder from the rail, and that blood and small pieces of bone were found on the east rail and nowhere else, all tended to prove, and warranted the jury in finding, that Old fell from the train while attempting to make the passage from the refrigerator car to the tank car in the manner indicated, and that if the train had been provided with the necessary grabirons or handholds on the ends he might have made the passage and protected himself against the danger notwithstanding the violent lurching and jerking of the train. The fact that immediately after this last jerking of the train some one was heard to cry out, “Oh! Oh!" and that the body of Old was soon thereafter discovered, tends to show a causal connection between the lurching of the train and his death.

We are of the opinion that it was a question for the jury, under the circumstances developed in evidence, as to whether or not the death of Old was caused by the negligence of appellant as alleged in the complaint.

The jury were warranted in finding that when Old came out of the station at Page with his orders he proceeded, with his lantern in his hand, to mount the cars where his duty called him; that he was passing from the top of the refrigerator car to the tank car, and on account of the same not having been provided with any grabirons or handholds, in attempting to make the passage as the cars lurched forward, he was thrown between them; that if the cars had been provided with the necessary grabirons he might have saved himself notwithstanding the sudden jerking or lurching of the cars by holding onto these grabirons. It was shown that there was only one opening in the train between where Old (or the man whom the jury might have found to be Old) was last seen at the end of the cars where the jury could have found, and must have found, that Old fell. The intervening space before he came to the space through which he must have fallen was between two refrigerator cars of the same height, and it required only a short step to make this passage. Old being a large man, stout, and active, it was not at all probable that he would have fallen between the two refrigerator

VII. Appellant relies upon several cases in this court wherein we have held that there must be some causal relation between the injury and the negligence, and that the happening of the accident is not of itself sufficient to show such causal connection, and that

matter of conjecture, surmise, speculation, or supposition, there can be no recovery, citing, among them, the recent cases of Jonesboro, L. C. & E. R. Co. v. Minson, 102 Ark. 581, 145 S. W. 215, Denton v. Mammoth Spring E. L. & P. Co., 105 Ark. 161, 150 S. W. 572; and Midland Valley Ry. Co. v. Ennis, 159 S. W. 214. The above doctrine was announced in cases where the facts showed that the causal connection between the injury and the negligence, was merely conjectural. Each case, of course, must depend upon its own facts, and as we view the evidence in this case it is clearly distinguishable from the cases last mentioned, but does come under the doctrine, as already stated, announced in St. L., I. M. & S. R. Co. v. Hempfling, supra, and St. L., I. M. & S. R. Co. v. Owens, supra, where the facts as proved by the circumstances warranted a finding that the negligence alleged caused the injury, and that the causal connection was not a mere matter of conjecture, but was proved by substantial, even though circumstantial, evidence.

[15-17] VIII. The appellant urges that the court erred in excluding testimony to the effect that Old admitted that he was injured because he attempted to catch the train and slipped. The record shows that about an hour and a half after the injury a witness asked Old how the injury occurred. Old at that time had begun to sink. The witness shook him several times and aroused him sufficiently for him to speak in a very low tone, and, being asked the third time how the injury occurred, Old stated that he tried to catch the train and slipped and fell. On being asked if he tried to catch the train or the caboose, he said the train.

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the prosecution of more than one action, and permits only one recovery; but the action is prosecuted, after the death of the injured person, for the benefit of the widow and next of kin, and may include compensation for the pain and suffering endured by the injured person as well as for pecuniary loss of earnings and contributions; in other words, compensation for all of the damages resulting from the injury for which the statute provides a remedy inures after the death of the injured person to the benefit of the widow and next of kin, but must be recovered in one action." See, also, Gulf, Colo. & S. F. Ry. Co. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. 785 (May 1, 1913).

The admissions of a deceased person against his interest are competent only when the action is for or against him in his own right. Conceding (without deciding) that the testimony offered to show the admissions would have been competent and admissible as declarations against interest, and conceding that if the appellant had asked that the testimony be not excluded, but limited to the right of recovery growing out of the cause of action for pain and suffering, that the court would have erred in excluding the testimony, nevertheless there was no privity of interest between Old and his wife and child so far as their right to recover for the loss of contributions on account of his death is concerned. The testimony, if competent, in the right of action given them for this loss was purely hearsay. As stated by Mr. Greenleaf: "The ground upon which admissions bind those in privity with the party making them is that they are identified in interest; and, of course, the rule extends no further than this identity of interest." 1 Greenleaf, Ev. § 180.

In the case of Graysonia-Nashville Lumber Co. v. Carroll, 102 Ark. 461, 144 S. W. 519, we held: "Where two causes of action were united in one action, evidence offered by defendant which was admissible in one case but not in the other was properly excluded, where the defendant did not ask that the testimony be limited to the cause to which it was applicable."

In Murphy v. St. L., I. M. & S. R. Co., 92 Ark. 159, 122 S. W. 636, we held that "it was error to permit the defendant to offer in evidence a written statement made by deceased in his lifetime to the effect that his mother was dead, as there is no privity between the next of kin and the deceased."

Under the Employers' Liability Act and its amendment of April 5, 1910, appellee as administrator of the estate of Leslie Old was entitled to recover damages by way of compensation for the financial loss to the widow and child of deceased by reason of the death of the husband and father, also appellee could recover for the conscious pain and suffering which the husband and father endured after the injury, which survived to appellee as the personal representative of Old for the benefit of his widow and child. See Act of Congress April 22, 1908, § 1, and section 9 added by amendment April, 5, 1910.

The statute, as to the loss of contributions on account of the death of the husband and father, creates a right of action for the benefit of the widow and the next of kin wholly independent of the right of action given to the injured person for the pain and suffering which he endured on account of the injury. See Mich. Cent. Ry. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417. The latter right of action under the amendatory statute of April 5, 1910, was made to survive to his personal representative for the benefit of his widow and next of kin. In St. Louis & S. F. Ry. Co. v. Conarty, supra, we said:

Here, under the above ruling, the testimony, to say the least, was clearly incompetent in the right of action for the loss of contributions. If incompetent for any purpose, as the appellant did not ask that it be limited to the right of action for pain and suffering, the court did not err in excluding it for all purposes. Here the appellee did not desire the testimony for any purpose, and the testimony, as already shown, was wholly incompe

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