St. Louis, Iron Mountain & Southern Railway v. Puckett

• Citation: 114 S.W. 224,88 Ark. 204
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY v. PUCKETT
• Decision Date: 23 November 1908
• Court: Supreme Court of Arkansas

114 S.W. 224

88 Ark. 204

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY v. PUCKETT

Supreme Court of Arkansas

November 23, 1908

Appeal from Faulkner Circuit Court; Frederick D. Fulkerson, Judge on exchange; affirmed.

Judgment affirmed.

T. M Mehaffy and J. E. Williams, for appellant.

1. The record here is not sufficient to show negligence on the part of appellant. Under the facts as developed in this case, to hold appellant to a measure of precaution that would have prevented such an accident would be to make it an absolute insurer against any injury or accident that might occur in the operation of its trains in or out of its yards. Such is not the law. The only duty resting on appellant in moving its train of cars was to take ordinary and reasonable precautions to warn workmen out of the way. 67 Ark. 377.

2. An instruction on the question of negligence, without defining what constitutes negligence, is abstract and misleading, and it is error to give such an instruction. 76 Ark. 599; 77 Ark 261; Id. 567; 78 Ark. 177; 82 Ark. 424.

3. The court's modification of the eighth instruction requested by appellant was erroneous. Before a habitual violation of the company's rule would justify the abrogation or disregard of such rule, it must be shown that such violation was with the knowledge and acquiescence of the company or its superior officers. 77 Ark. 405.

It can not be said which of the two disjointed propositions submitted by the court's modification the jury followed. 70 Ark. 443; 58 Ark. 324.

J. H. Harrod and A. J. Newman, for appellee.

1. The burden was on appellant to show that its employees were not guilty of negligence. The testimony of Jones shows that no warning was given. The fact that none was given is sufficient to sustain the verdict.

2. Instructions are to be considered as a whole. The court fully explained what would constitute negligence in this case, in instructions given at request of appellant.

3. The eighth instruction as modified was still more favorable to appellant than it had the right to ask for. There is no proof that any of the company's rules had ever been made known to the deceased. An employee is not bound by rules that have not been brought to his attention. 48 Ark. 333.

OPINION

HART, J.

This is a suit for damages brought by W. D. Puckett as administrator of the estate of A. G. Puckett, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. The cause of action, as stated in the complaint, is substantially as follows: The deceased, A. G. Puckett, was an employee of the defendant, and was working as a carpenter, repairing cars on track four. At that time there were a number of cars standing on track seven that had been repaired and had been left standing there. That there was a space of three or four feet between the cars standing on said track seven that had been left open for the employees of the company to go through in passing over said track in their work in said yards. That on July 28, 1906, about 9 o'clock in the morning, the deceased, in the performance of his duty and in obedience to the command of his foreman, went on said track seven to hunt washers that he needed in the work of repairing cars. That while he was engaged in picking up washers on track seven, between said cars in the space that had been left open, the cars were run against each other, and he was caught between them and crushed. That he suffered great bodily pain and mental anguish from the time he was hurt until twelve o'clock that day, when he died. That the injury and death of Puckett were caused by the negligence of the defendant in running said cars together without giving him any notice or warning that the cars were about to be moved. Prayer for judgment both for the estate and for the father as next of kin for his pecuniary damage, the complaint showing that the father was his next of kin and that the deceased had contributed to his support.

The defendant answered, denying the material allegations of the complaint, and charged contributory negligence on the part of plaintiff's intestate.

Evidence was adduced by the plaintiff to sustain the allegations of the complaint as above set forth. The defendant adduced evidence to establish its defense. The defendant has appealed from a verdict and judgment in favor of plaintiff for $ 3,250.

Counsel for appellant contend that in any view of the case it only presents a matter of an unfortunate accident, and that the record is not sufficient to show any negligence upon the part of appellant.

The facts leading up to and causing the death of Puckett are not disputed. The accident occurred in the morning on track No. 7 in the yards of appellant company. The cars were placed there for the purpose of being repaired, and were separated, that is, not coupled together. This was for the convenience of the men engaged in repairing them. Some of the servants of the company were engaged in coupling them up, preparatory to taking them out. They cocked the levers and fixed the couplings so they would make themselves if properly opened. The engineer was given the signal to couple, and they tied to or coupled six cars together. The seventh car did not, and the impact of the engine and other cars against it shunted it down against the eighth car and crushed Puckett, who was between the eighth and ninth car from the engine. This made a prima facie case of negligence against appellant.

Under section 6773 of Kirby's Digest, placing responsibility upon railroads where injury is done to persons or property by the running of trains, a prima facie case of negligence is made out against the company operating the train by the proof of the injury. Kansas City S. Ry. Co. v. Davis, 83 Ark. 217, 103 S.W. 603, and cases cited; St. Louis, I. M. & S. Ry. Co. v. Stell, 87 Ark. 308, 112 S.W. 876; St. Louis, I. M. & S. Ry. Co. v. Briggs, 87 Ark. 581, 113 S.W. 644; St. Louis, I. M. & S. Ry. Co. v. Fambro, ante p. 12, Little Rock & Ft. Smith Ry. Co. v. Blewitt, 65 Ark. 235, 45 S.W. 548.

Counsel for appellant claim to have overcome this prima facie case of negligence by its testimony as to the warnings given before the engine started. They introduced evidence tending to show that, immediately prior to the accident, its servants warned all the men to get from under and between the cars, and that they shouted warnings to all persons that the engine was about to start and for every one to beware of the danger. They testified that the engineer commenced to ring the bell before the engine started to couple the cars. This testimony, standing alone and uncontradicted, would have been sufficient to overcome the prima facie case of negligence. But appellee introduced a witness named Jones, who testified that he had just passed through the place where Puckett was hurt and had not gone more than one hundred feet away when the accident occurred. He says that he did not hear the whistle or bell sounded, and thinks that he would have heard it if the whistle had been blowing or the bell ringing. He also says he did not hear the warnings given by the persons who were engaged in coupling the cars. This presented an issue of fact for the jury. ...