
    Chicago, Rock Island & Pacific Railway Co. vs Driggers.
    Opinion delivered April 2, 1898.
    
      i. Railroad Trains — Negligence.
    Appellee was a passenger on one of appellant’s freight trains The train was composed chiefly of loaded cattle cars. Th third car forward of the caboose jumped the track, derailin the train, and causing the injury complained of by appellee The train was run at the rate of forty miles an hour. Th car which jumped the track was an empty refrigerator cai There was testimony that such car was as heavy as an ordinar passenger coach, and that first-class roads some times hai such cars m passenger trains. Held, That no negligence o the part of the railroad company is shown by having such ca in the said train, and in the place where it was.
    
      ’. Duty of the Court to Direct Verdict.
    
    Where the evidence is such that the court must set aside a verdict and grant a new trial, if a verdict should be rendered for the plaintiff, it is the duty of the court to take the case from the jury and direct a verdict for the defendant.
    Appeal from the United States Court for the Southern listrict.
    C. B. Kilgore, Judge.
    Suit for damages for personal injury by J. F. Drig-gers, against the Chicago, Bock Island & Pacific Railway lo. Judgment for plaintiff. Defendant appeals.
    Reversed.
    .This action was commenced at Chickasha on August ¡2, 1896, by appellee, to recover of appellant $15,000 for jersonal injuries, $50 for medical care and $72 for loss of time, >n account of injuries received by appellee while being carted on one of appellant’s stock trains in Kansas on the 17th lay of the same month. The complaint charges that appel-mt, on said 17th day of August, entered into a contract vith appellee to haul two car loads of cattle from Chickasha o Union Stock Yards, at Kansas City, Mo.; and furnished jppellee transportation to Kansas City and return, for the mrposeof looking after said cattle; “that while in transit, nd in charge of said cattle, on defendant’s road, about 15 liles north of Wichita, Kansas, said defendant, through its gents, servant^ and employes, operated and ran the train, pon which the said cattle and the plaintiff herein were be-ug carried t and hauled, in such a careless and negligent lanner, and at such a great rate of speed, thereby endan-ering the life and safety of the plaintiff; and that by reason f the negligent and careless manner in which the defendant, y its servants and employes, constructed its Cars, and the negligent and careless manner in which they arranged ths cars of said train, wherein they attached an empty to the rear end of said train, causing the same to ñy the track anc break loose from the main train, together with the caboose in which the plaintiff was riding, causing the caboose te violently overturn, breaking and dislocating the plaintiff’s left clavicle from the sternum, and fracturing and breaking the left two-thirds of left clavicle of the plaintiff, near the shoulder joint, also bruising and injuring plaintiff’s lef elbow, causing the plaintiff great pain, suffering, and menta agony, and rendering him permanently injured, to his grea damage, in the sum of fifteen thousand dollars ($15,000).’ The contract is made a part of the complaint. It is theréii stipulated that the two cars of cattle are ‘ ‘to be loaded anc unloaded, watered and fed by the said J. F. Driggers, ór his agents, and in consideration of free transportation for on< person, hereby given by said railway company, such per sons to accompany the stock; that the persons who receive free transportation in charge of said stock, in consideratioi of the receipt of "the same, agree to assume all risk of per sonal injury from any cause whatever, except injuries iron gross carelessness of the railway company.” Appellant an swered on September 9, 1896, and admitted jurisdictiona matters alleged in the complaint, and the execution of th< the contract, and averred that appellee, at the time of th alleged injuries, was being carried on appellant’s freigh train under said contract, and that the alleged injuries wer not the result of gross negligence on its part. It denied tha the injuries were of the kind alleged, and denied that the; were caused by, or the result of, any negligence or careless ness on its part. On the trial the appellee, his father am the witness Harness, appellee’s employe, testified that the; were all on appellant’s freight train, accompanying stock t Kansas City, and when they got beyond Wichita, and whii train was running at from 40 to 60 miles per hour as state* by the father, and at from 40 to 45 miles an hour, as stated by Harness, an empty refrigerator car, the third one from the caboose, left the track, causing the caboose to also leave the track and overturn, resulting in the breaking of apppel-Lee’s collar bone and bruising his elbow, compelling him to keep his bed two to foui weeks, and preventing him from working for six weeks or two months. Appellee further ;estified that his left shoulder still (five and two thirds months liter the injury) hurt him when he lay on it of nights, and ¡hat he did not have good use of his arm about lifting any-¡hing; that he was in the stock business, and his time was vorth $1 to $1.50 per day, and .that he had to pay $85 in loctor bills. Appellant, defendant below, introduced as vitnesses its division superintendent, its general foreman of notive power and equipment, or master mechanic, and the ¡onductor, engineer and brakeman, all of whom were on the rain in question, and who had had from 7 to 24 years expe-ience in railroading; and also introduced its car inspector, vho inspected the car and train at Caldwell before the acci-.ent, and also the inspector who inspected the car after the ccident; and also introduced its road master and section oreman. As to the condition of the track at or near the lace in question, appellee announced that he would aban-on all claim that it was negligently constructed or íaintained. It was shown to have been level and in first-lass condition in every respect, and suitable for trains to un over with safety at 50 or 60 miles per hour. As to the ondition and construction of the car that left the track and aused the accident, the inspector testified that it was in rst-class condition when it passed Caldwell, before the ac-Ldent. After the accident it was carefully looked over by íe train crew, the road master, the superintendant, and Aster mechanic, and none of them were able to detect lything defective about it, or anything that would tend to ¡tuse it4to leavejthe track; and the superintendent and master mechanic had it carefully inspected by a competent inspector, after the accident, with proper appliances and tools, and nothing was found defective about it that would tend to cause it to leave the track. ■ It was shown to have been constructed specially for fast running, carrying perishable freight, very heavy, weighing some 36,000 pounds, and that such cars — refrigerator cars — empty or loaded, were frequently placed in passenger trains by first-class roads. As to the arrangement of the train, all these witnesses who testified on that point testified that the train was properly arranged. As to the speed of the train at the time of the accident, the superintendant, master mechanic, and three o: the train crew, all of whom had had many years’ experience in such matters, testified that the train .was running from 3f to 40 miles per hour, and the speed sheet introduced in evi dence showed that the train was running 40 miles per hour All of them testified that over that portion of the track, be ing in good condition, straight, and some down grade, i speed of 50 or 60 miles per hour was considered safe. Non< of the witnesses could give any cause for the car leaving th< track. At the close of the evidence appellant asked th< court to instruct the jury to return a verdict for it, but th< court refused to so direct the jury. Under the instruction the jury returned a verdict for appellee, plaintiff below, fo $1,400. On the same day appellant filed its motion for a nev trial, which was overruled. Judgment was rendered on th verdict. Appellant moved for fin appeal to this court, whici was gyanted. A supersedeas bond, and also a bill of excej tions, were filed within the time granted by the court, an appellant brings the cause to this court, and asks for ar( versal of the judgment.
    
      John I. Dille and W. E. Glarlc, for appellant.
    1. Appellee failed to show any negligence whateve upon the part of appellant, and the court should have instructed a verdict for the defendant. Railway Company vs Woodworth, 1 Ind. Ter. 20; Washington vs Railway, 36 S. W. 779; Schofield vs Railroad, 114 U. S. 615; Motey vs Pickle Company, 74 Fed. 155; Sipes vs Saymour, 76 Fed. 116.
    2. The court erred in charging the jury “that if they found that the defendant * * * was guilty of negligence in making up * * * said train, and that the injury to the plaintiff was the result of such neglect, it would be your duty to find for the plaintiff.” There was no evidence to support the charge, and it is prejudicial error to charge the jury upon a state of facts concerning which there is no proof. Mich. Bank vs Eldred, 9 Wall. 544; Ins. Co. vs Stevens, 71 Fed. 258, 262; Railroad vs Houston, 95 U. S. 697, 703; Ky. dent. Ry. vs Biddle, 35 S. W. 904; St. L. A. & T. Ry. vs Torrey, 58 Ark. 217; 24 S. W. 244; I. & G. N. Ry. vs Eason, 15 S. W. 208; Fergus vs Dodson, 33 S. W. 272.
    
      A. G. Cruce and Kiddle, & Payne, for appellee. .
    1. The witnesses who testified in regard to the speed >f the train were competent. When the facts and circumstances are disclosed upon which the opinion is founded, it s competent for witnesses to give their opinion. Kelley vs vlcGuire, 15 Ark. 555; Abraham vs Wilkins, 17 Ark. 322; ■State vs Pike, 6 A. R. 549. Witnesses may be permitted to estify as to the rate of sp.eed of a railroad train upon a cer-ain occasion. Detroit vs Van Steinberg, 17 Mich. 99; Com - nonwealth vs Sturtivant, 19 A. R. 401; 62 Ark. 258; Ben-Lett vs Meehan, 43 A. R. 78; State vs Folwell, 14 Ark. 105; Sommonwealth vs Malone, 114 Mass. 295. The fact of the erailment of the train itself shows negligence upon the part f the railroad company. Albion Lumber Co, vs DeNobra, 19 C. C. A. 168; Seybolt vs Railroad Co., 95 N. Y. 562; 4C Ark. 298; Feltall vs Middlesex Railroad Co., 109 Mass. 720: George vs Railroad Co., 34 Ark. 613.
   Springer, C. J.

(after stating the facts). The firs error assigned by appellant in this case is that the court be low refused to instruct the jury, as requested by appellant that the plaintiff had failed to show that he received th< injuries alleged in the complaint through the negligence o carelessness of the defendant, its agents, servants, or em ployes, and therefore that the jury should return a verdic for the defendant. Whether a motion should be allowet taking a case from the jury, and directing a verdict by th< trial court, depends upon the evidence. The statemen which precedes this opinion is taken substantially from th brief of appellant; but in the brief of appellee it is concede* that the facts as given above are substantially correct, an* no suggestion as to a modification thereof is made. We wil assume, therefore, that the facts disclosed by the evidenc are as set forth in the foregoing statement. Appellee state in his brief that he does not rely upon any negligence in th construction of the cars, but solely upon the allegation o the 1 ‘negligent arrangement of the cars in the train and th negligent and careless running of the train.” We will cor sider these contentions separately.

First, as to the alleged negligent ai’rangement of th cars in the train: There were only two witnesses introduce by appellee besides himself. In appellee’s testimony h made no statement in reference to the arrangement of th cars in the train. J. C. Driggers, appellee’s father, state that he thought the wreck was caused by an empty-ca jumping the track — a refrigerator car, which was taller tha the other cars in the train — and that it was the third ca from the caboose. I. H. Harness, who was an employe c appellee to assist in transporting the cattle, testified, on behalf of appellee, that it was the third car from the caboose that jumped the track — an empty car, taller than the others; that the train was heavily loaded with cattle; but that he did not know what caused the wreck. It is conceded by appel-lee that the car which jumped the track and caused the accident was properly constructed. If there was any negligence on the part of the railway company, it was in coupling an empty car in a train loaded with cattle at the position in the train indicated, namely, the third car from the caboose. The testimony of appellant’s witnesses, who were all railroad men, having had experience from 7 to 24 years in railroad matters, was to the'effect that the car which jumped the track was a refrigerator car, fully as heavy in equip-nent as passenger cars, and that such cars are frequently 3arried with passenger trains on first-class roads and under irst-class management. There was no conflict in the testi-nony on this point. It was conclusively established that ¡he arrangement of the cars in the train was properly made, ind certainly no negligence can be imputed to' the railroad company on this account.

Railroad Train — Proper Arrangement.

The second contention of appellee is on account of the alleged “negligent and careless running of the train.” It s conceded that the track was properly constructed and naintained; that there was no negligence in the construction >f the cars; and we have shown that the arrangement of he cars in the train was in the usual manner, and free from ,ny fault on the part of the railroad company. If there was ny negligence or carelessness, it was in the speed of the rain at the time of the accident. The superintendent, maser mechanic, and three of the train crew all testified that he train was running from 35 to 40 miles an hour. Mr. larness, one of appellee’s witnesses, testified that it was unning from 40 to 45 miles an hour; while the appellee’s father, who was on the train, testified that he thought i was running- from 40 to 60 miles an hour. But the speec sheet, which was introduced in evidence, showed that tb train was running 40 miles an hour. All the witnesses fo the railroad company testified that over that portion of th' track, being straight, in good condition, and slightly dowi grade, a speed of 50 or 60 miles an hour was considered safe There was no conflict in the testimony upon the question a to the rate of speed which was considered safe, under th conditions stated. If there was any conflict, it was as t the rate of speed at which the train was running. Th highest rate stated was 60 miles an hour, which was th opinion of appellee’s father, who was not an expert in sue matters. But, if the highest rate mentioned had been th actual rate of speed, the evidence is not disputed that sue rate would be safe. There was no conflict on this poin The speed sheet was introduced. This showed- a rate c speed of 40 miles an hour at the time of the accident, Th rate may therefore be regarded as established as the actrn rate of speed. A speed sheet is a mechanical device for r cording the exact rate of speed of trains on railroads. Und( the undisputed facts and circumstances of this case, was tl running of this train, so made up and on such a track, at rate of speed of 40 miles an hour, an act of negligence c carelessness? There can be but one answer to this question under the evidence in this case: No negligence or careles ness has been shown. Hence there was nothing in the ev dence to support a verdict for the appellee, and the cou: should have directed the jury to return a verdict for tl defendant, the appellant in this court. The practice of d recting verdicts is a departure from earlier usages, and has been of slow development. The reluctance of the cour * to invade the province of the jury by directing verdicts su vives in the form of a rule, in force in some jurisdiction known as the “scintilla of evidence rule,” which is to tl ffect that a verdict may be directed only where there is no violence, however slight, and no inference to be drawn rom the facts, which will support the opposite theory. If j party has produced a scintilla of proof in his favor he is ntitled, where this rule prevails, to have the case submitted o the jury. This rule is applicable, even though it may ppear that the evidence is insufficient to support the ver-Lict, and that the latter must be set aside upon a motion or a new trial. 6 Enc. Law (N. S.) pp. 675-677, audnumer-us cases there cited. The later and prevailing doctrine, is hat a case may not be left to the jury unless there is evi.ence which will warrant a verdict in favor of the party iroducing it. Id. p. 678. This rule has been adopted by ouxts of appeal in at least 21 states of the union, including Lrkansas, Illinois, Indiana, Iowa, Kansas, Massachusetts, lichigan, Missouri, New York, Pennsylvania and Wiscon-in, and by all United States courts, including the supreme ourt of the United States. As far back as 14 Wall., the upreme court, in the case of Improvement Co. vs Munson, nnounced the new rule as follows: ‘ ‘Formerly it was held rat if there was what is called a scintilla of evidence in rpport of a case the judge was bound to leave it to the iry, but recent decisions of high authority have established more reasonable rule, that in every case, before the evi-mce is left to the jury, there is a preliminary question for íe judge, not whether there is literally no evidence, but hether there is any upon which a jury can properly pro-sed to find a verdict for the party producing it, upon whom Leonus of proof is imposed.” Improvement Co. vs Mun->n, 14 Wall. 443. The supreme court in 10 Wall, held: According to the settled practice in the courts of the nited States, it was proper to give the instruction, if it ere clear the plaintiff could not recover. It would have sen idle to proceed further, when such must be the inevit-)le result. The practice is a wise one. It saves time and costs; it gives the certainty of applied science to the results of judicial investigation; it draws clearly the line which separates the provinces of the judge and the jury, and fixes where it belongs the responsibility which should be assumed by the court. ” Merchants’ Nat. Bank, vs State Nat. Bank, 10 Wall. 604. “The following statement of the law has been approved in many negligence cases: “The case should not be withdrawn from the jury unless the conclusion followed, as a matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish.’’ Dunlap vs Railroad Co. 130 U. S. 649, 9 Sup. Ct. 647; Railroad Co. vs Cox, 145 U. S. 593, 12 Sup. Ct. 905; Railroad Co. vs Kelley, 10 U. S. App. 537, 3 C. C. A. 589, and 53 Fed. 459; Railway Co. vs. Ellis, 10 U. S. App. 640, 4 c. C. A. 454, and 54 Fed. 481.’ The test now most frequently employed in exercising the . right to direct a verdict is whether a different verdict woulc need to be set aside as contrary to the evidence. If such is the case a verdict should be directed. This rule is followed in about 20 states of the Union by United States courts gen erally, and by the supreme court of the United States. Set numerous cases cited in 6 Enc. Law (N. S.) pp. 681, 682. Ii a well considered case the Supreme Court held: “Itisthi province of the court, either before or after the verdict, ti decide whether the plaintiff has given evidence sufficient t< support or justify a verdict in his favor. Not whether, oi all the evidence, the preponderating weight is in his favor —that is the business of the jury, — but, conceding to al the evidence offered the greatest probative force which, ac cording to the law of evidence, it is fairly entitled to, is i sufficient to justify a verdict? If it does not, then it is th duty of the court, after a verdict, to set it aside and grant; new trial. Must the court go through the idle ceremony, i: such a case, of submitting to the jury the testimony oj which plaintiff relies, when, it is clear to the judicial min hat, if the jury should find a verdict in favor of plaintiff that verdict would be set aside and a new trial had. Such a proposition is absurd, and accordingly we hold the true, principle to be that if the court is satisfied, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is sufficient to warrant a verdict for the plaintiff, the court should say so to the jury.” Pleasants vs Fants, 22 Wall. 116. In Minnesota it is held that a verdict may be directed ‘ ‘at the close of the whole sase, though the plaintiff’s evidence, standing alone, would justify submitting the case to the jury, where the defendant’s evidence, so fully and satisfactorily explains it away, rr so overwhelms it that there is no bona fide question of fact upon which a verdict for the plaintiff could be per-nitted to stand.” Giermann vs Railway Co., 42 Minn. 5; 48 N. W. 483. In New York it is said that “to warrant an unqualified direction at the trial in fav'or of the one or the Dther party, the evidence must either be undisputed, or here must be such a preponderance that, should the jury ind against it, a new trial would be granted for that reason.” Rich vs Rich, 16 Wend. 663; Goodrich vs Walker, 1 Johns Jas. 251; Rudd vs Davis, 3 Hill 287; Id. 7 Hill 529; Carnes vs Platt, 1 Sweeney 140; People vs Board of Police, 35 Barb. 651; Dwight vs Insurance Co., 103 N. Y. 341; 8 N. E. 654; Linkauf vs Lombard, 137 N. Y. 417; 33 N. E. 472; Dodge vs Gaylord, 53 Ind. 365; Peet vs Insurance Co., 1 S. D. 462; 47 N. W. 532. It is error for the court to refuse to lirect a verdict in a proper case. Railroad Co. vs Jones, 95 U. S. 439; Kresanowski vs Railroad Co., 18 Fed. 229; Conners vs Railway Co., 74 Iowa 383; 37 N. W. 966. Appel-ant’s motion, that the court .should direct a verdict in its iavor, should have been granted. It was error for the court ;o refuse it. The judgment of the court below is reversed, md case remanded, with direction to set aside the verdict, md grant a new trial.

Duty of Court to direct verdict.

Clayton, Thomas and Townsend, JJ., concur.  