Dick v. Atchison, Topeka & Santa Fe Railway Co.

THOMPSON (IRA F.), J.

The defendant appeals from a judgment rendered in favor of the plaintiff in an action brought for the recovery of damages for personal injuries. And inasmuch as it is earnestly insisted that the evidence is insufficient to support the verdict of the jury we shall first set down that portion of the testimony which

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justifies the jury’s finding. The respondent was a fireman on a freight train and in the employ of appellant on a run between Winslow, Arizona, and Gallup, New Mexico. On the night of the accident, September 17, 1925, the train, in charge of one D. M. Birney as engineer and respondent as fireman, was scheduled to stop at Houck, Arizona, for the purpose of taking on fuel coal. As the train approached the coal-bins, which are located above the level of the tender and from which coal is loaded by gravity, after the fireman has pulled down an iron apron long enough to extend from the bin to the tender, it was traveling an upgrade of about seven-tenths of one per cent, or about thirty-seven feet to the mile. There was in effect at the time a rule of the appellant that when coal was to be taken the engine should be uncoupled and spotted at the bin. On this occasion, according to the testimony of the respondent, the engineer refused his request to uncouple the engine, saying that they were in a hurry to meet, at a certain other siding, a passenger train. Accordingly, with sixty freight-ears attached, they drifted by the bins four or five car-lengths and then back up to- the proper place. During the time the train was being reversed the respondent was riding on top of the cab in view of the engineer, although he could not see the latter. According to respondent’s testimony he stood there for ten or twelve seconds after the train stopped and then the engineer told him that the “first pocket there was all right, to get down and get to work.” Whereupon respondent stepped down on “the tool-box just behind the cab.” After four or five tons of coal had run into the tender the engineer told bim to get out of there, that he was going to spread it with the engine, but, to quote the witness, he “didn’t have time— caught me before I could get out.” The respondent’s right leg was so badly crushed as to necessitate an amputation, near the hip, rendering him a permanent cripple. It is only just to say that evidence produced by the defendant was in conflict with much of that we have already' recited, but it is sufficient for our purposes to set down that which the jury evidently accepted as the true version of the occurrence. It is manifest ■ from the statement that there is ample support therein for their verdict and their belief that the engineer negligently and carelessly and without