St. Louis, A. & T. Ry. Co. v. Torrey

• Citation: 24 S.W. 244
• Parties: ST. LOUIS, A. & T. RY. CO. v. TORREY.
• Decision Date: 25 November 1893
• Court: Supreme Court of Arkansas

24 S.W. 244

ST. LOUIS, A. & T. RY. CO. v. TORREY.

Supreme Court of Arkansas.

November 25, 1893.

Appeal from circuit court, Monroe county; Robert J. Lea, Judge.

Action by R. J. Torrey against the St. Louis, Arkansas & Texas Railway Company for personal injuries caused by defendant's negligence while plaintiff was in its employ. From a judgment for plaintiff, defendant appeals. Reversed.

Plaintiff alleged that he was in the service of the defendant as a bridge carpenter, under one L. M. Sanford, as foreman. That on the day mentioned they were repairing a bridge over White river, when he was ordered by his foreman to hold a certain block and tackle which had been negligently wrapped around a stay on the bridge, so as to allow an engine to pass; and that, while holding the block and tackle, the passing engine caught the rope attached to the block, and caused the block to strike him upon the head and face with great force. That the plaintiff was not skilled in bridge work, and did not know the danger attending the position he occupied.

The defendant asked the court to instruct the jury as follows: "(2) The jury are instructed that a bridge carpenter, an engineer, a conductor when engaged in operating a railroad in the service of the same company, are fellow servants; and a foreman of a bridge gang is, so far as any work or labor done or performed by him, also a fellow servant with a carpenter in the same service; and this is so even if the foreman had a right to employ and discharge the carpenter. And if the plaintiff was injured either by want of attention or ordinary care on his part, or by the negligence of the engineer or conductor, or by the failure of the foreman to perform his tasks or work undertaken by him in a skillful manner, they will find for the defendant."

The court, upon its own motion, gave the following instructions: "(1) In this case the plaintiff sues the defendant railway company for an injury which he alleges he received through the negligence of the said defendant, while the plaintiff was himself in the employment of said defendant. (2) The jury are instructed that the plaintiff, in entering the employment of the defendant as a bridge carpenter, assumed all risks ordinarily incident to that employment, and one of those risks is the liability to be injured by the negligence of the fellow servant. A conductor and engineer in the employ of the defendant, and whose duties require them to move or have charge of a train passing over their line and over the bridge which plaintiff was at the time repairing, under the employment of defendant, are fellow servants with the plaintiff, and for an injury occasioned by the negligence of either the conductor or engineer the plaintiff cannot recover. (3) If the jury believe that the proximate cause of the injury to plaintiff was the act of the conductor and engineer in attempting to pass the bridge before receiving a signal from the foreman of the bridge gang, or if they believe that the injury to the plaintiff was caused by the fact that the engineer or conductor in charge of the train attempted to pass the bridge without first giving time to plaintiff or his foreman to properly adjust the rope and tackle, then in neither event can plaintiff recover, and the finding should be for defendant. (4) A foreman of the defendant in charge of a force of bridge carpenters, with authority to hire and discharge such carpenters, and to direct when and where they should work, would not be a fellow servant of such men under his control; and if the jury believe that the plaintiff, while in the employ of the defendant, and while working under the control and direction of a foreman was negligently and carelessly ordered by said foreman to a dangerous position, and that while occupying that dangerous position, and by reason thereof and of said order, he was injured while he himself was exercising due care, the plaintiff may recover for such injuries. (5) A person in the employ of another upon work which is by both the employe and the employer known to be dangerous must himself exercise ordinary care to avoid his own injury, and if the injury is the result of his own rashness in going into a dangerous place he cannot recover; but it is the duty of an employer, and of his foreman when he employs a foreman, to control and direct his workmen in their work, to warn an inexperienced workman of the dangers liable to be encountered by him in the performance of his duties, but he would not be required to do this if by reason of his age and experience in such work the workman may be presumed to be aware of such danger. (6) If the jury believe that the plaintiff was injured by reason of attempting to hold the block and rope under the order of his foreman, then, in arriving at a conclusion as to whether said foreman or the plaintiff was guilty of negligence, they may take into consideration their age and experience, and their means of knowing whether the position he was ordered to take was dangerous or not, and all other circumstances surrounding the injury; and if they believe from the evidence that the plaintiff was carelessly ordered by his foreman to take hold of the block and rope while the train was coming, that the position was dangerous, and that the plaintiff, by reason of his inexperience, was unaware of the danger, and that the foreman failed to warn him, and that the injury to the plaintiff was the direct result of such carelessness on the part of his foreman, the jury will find for the plaintiff. (7) In the event that the jury find that the plaintiff, while in the exercise of ordinary care on his part, was injured by the negligence of the foreman in ordering him into a dangerous position, and that this was the direct...