I respectfully dissent from the decision of the majority in reversing and dismissing this case. The majority bases its decision on the ground that the negligence of defendant, Mrs. Keene, was the "sole, proximate cause" of the injury to appellee. In reaching this conclusion the majority has, in my opinion, invaded the province of the jury as the fact finding body, misconstrued certain testimony, and ignored the effect of the 1939 amendment to the Federal Employers' Liability Act and the decisions of the federal courts since adoption of the amendment.
In the case of Tennant v. Peoria Pekin R. Co.,321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520, the Supreme Court of the United States, in an action under the amended act, held that the evidence sustained a jury's finding that the failure to sound the bell of a locomotive before starting it amounted to negligence on the part of the railroad and that such negligence was the proximate cause of the employee's death. The court there said: "The focal point of judicial review is the reasonableness of the particular inferences or collision drawn by the jury. It is the jury, not the court, which is the fact finding body.
"Upon an examination of the record we cannot say that the inferences drawn by this jury that respondent's negligence caused the fatal accident is without support in the evidence. Thus to enter a judgment for respondent notwithstanding the verdict is to deprive petitioner of the right to a jury trial. No reason is apparent why we should abdicate our duty to protect and guard that right in this case."
In construing the amended statute in the case of Eglsaer v. Scandrett, 151 F.2d 562, the court said: "Perhaps the reconciliation of the earlier accepted, sometimes called the old fashioned idea, of `proximate cause' as the direct or efficient cause of the accident . . . in cases where this statute applies, and the conception of proximate cause which now obtains, is to be found in the enlarging *Page 663 phrase of the statute. It provides that if the railroad's negligence `in part' results in the injuries or death, liability arises. Under the old concept of proximate cause, that cause must have been direct, the complete, the responsible, the efficient cause of the injury. Contributing and remotely related causes were not sufficient. Now, if the negligence of the railroad has `causal' relation', — if the injury or death resulted `in part' from defendants' negligence, there is liability.
"The words `in part' have enlarged the field or scope of proximate causes — in these railroad injury cases. These words suggest that there may be a plurality of causes, each of which is sufficient to permit a jury to assess a liability. If a cause may create liability, even thought it be but a partial cause, it would seem that such partial cause may be a producer of a later cause. For instance, the cause may be the first acting can which sets in motion the second cause which was the immediate the direct cause of the accident . . ." See, also, Jenkins v. Kurn, 313 U.S. 256, 61 S. Ct. 934, 85 L. Ed. 1316; Tiller v. Atlantic Coast Line, 323 U.S. 574, 65 S. Ct. 421,89 L. Ed. 465: and Ellis v. Union Pacific R. Co. 329 U.S. 649,67 Sup. Ct. 598.
The majority states: "The great preponderance of the testimony is that signals were given. Indeed appellee himself so testified." In determining the sufficiency of the evidence to support a jury's verdict this court has universally applied the rule that, if there is any substantial evidence to sustain the verdict, it must stand and we are not required to find that the signals were not given by what we may conceive to be the preponderance of the testimony. Several witnesses testified that the signals were not given and none of the train crew, who should have been in position to give such testimony, were called a witnesses to dispute the testimony offered by appellee. The testimony of Eubanks was to the effect that the engineer blew the whistle "just as we were easing into the passing tract." The undisputed evidence discloses that upon entering the passing track the train was at that time more than 1500 feet from the crossing where appellee was injured. After entering *Page 664 the passing track the train was stopped and appellee threw the switch, and boarded the train, which traveled at a speed of 3 to 5 miles an hour to the crossing. The giving of the signal at the point testified to by appellee would certainly have afforded no warning to Mrs. Keene who may have been two or three miles from the crossing at that time. The majority's construction of the testimony of the witness Griffith is subject to the same misconception when read in its entirety.
It is difficult to select isolated bits of testimony and get a true picture of all the facts as the jury heard them from the various witnesses. If the testimony of Mrs. Keene, and others, is credible, the jury was warranted in finding not only that proper signals of the approach of the train were not given, but also that the only member of the crew, the fireman, who could have been in position to observe the situation at the time Mrs. Keene approached the crossing, was not even on the locomotive.
When the evidence is viewed as a whole it is, in my opinion, substantial and sufficient to support a finding by the jury that appellee was injured as a result of the concurring negligence of Mrs. Keene and the employees of the railway company. This issue was submitted to a jury under instructions to which no complaint has been made. Since Mrs. Keene has discharged the judgment against her, the majority reasons that the principles announced in our decision in Sands, Receiver of M.N.A. Rd. Co. v. Lynch, 122 Ark. 93,182 S.W. 561, L.R.A. 1916E, 204, are inapplicable here. It is difficult to follow this reasoning in view of the repeated holdings of our courts that the Federal Employers' Liability Act has as its main purposes the enlargement of the field of proximate cause, and the modification of the restrictive common law barriers against recovery, in railroad injury cases. Certainly the negligence of the employees and agents of the railway company is in no sense justified by the concurring negligence of Mrs. Keene. The right to have the jury, as the fact finding body, weigh the evidence and judge the credibility of the witnesses constitutes a vital part of the remedy afforded *Page 665 by the Act and employees should not be deprived of that right in close or doubtful cases. Bailey, Adm. v. Central Vermont Ry. Inc., 319 U.S. 350, 63 S. Ct. 1062,87 L. Ed. 1444. Inasmuch as the decision of the majority has, in my opinion, deprived appellee of this valuable right, I most respectfully dissent therefrom.
I am authorized to say that Justices ROBINS and McFADDIN concur in the views here expressed.