St. Louis Southwestern Ry. Co. v. Henson

• Decision Date: 23 November 1895
• Citation: 32 S.W. 1079
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. HENSON.
• Court: Arkansas Supreme Court

32 S.W. 1079

ST. LOUIS SOUTHWESTERN RY. CO. v. HENSON.

Supreme Court of Arkansas.

November 23, 1895.

Appeals from circuit court, Craighead county; James E. Riddick, Judge.

Action by H. M. Henson against the St. Louis Southwestern Railway Company for personal injuries and property destroyed. From a judgment for plaintiff, both parties appeal. Reversed, unless plaintiff enters a remittitur of damages.

E. F. Brown, for plaintiff. Sam H. West and J. C. Hawthorne, for defendant.

WOOD, J.

The plaintiff seeks to recover for injuries to person and for loss of property which he says were caused by defendant's negligence. Defendant admitted the negligence, but says it was the negligence of fellow servants, and, furthermore, as to the loss of property, that defendant was in no sense plaintiff's bailee, and in no sense liable. The plaintiff was foreman of a bridge and building gang, whose business was to repair bridges, culverts, and trestles. As a part of the necessary and customary equipment for such work, plaintiff was furnished with boarding cars, in which he lived, and boarded the crew of men working under him. These cars, upon the order of the superintendent of bridge and building, were moved from place to place on defendant's road, wherever the occasion demanded. Plaintiff and his property, the necessary appointments of a boarding car, and the men under him, were carried by the company to places of work without charge to plaintiff. The rules of the company required boarding cars, when moving, to be attached to the caboose. In this instance they were next to the engine, but the plaintiff had no control over the placing of cars. The conductor performed that duty. A list of the property alleged to have been destroyed is attached to the complaint, and marked "Exhibit A." On this list is a sewing machine, valued at $45, two pairs of lace curtains and poles, valued at $6, one diamond ring, valued at $110, one shotgun, valued at $14. As a part of the same exhibit was also an account for personal expenses, amounting to $11.85, and a charge "for repairs on two watches, eighteen dollars." The value of the articles listed and the account for expenses and repairs were shown to be as stated. The total amount of damages claimed was $606.85. Through the negligence of an engineer, one of defendant's trains collided with the train carrying plaintiff and his property, on a bridge over Crooked bayou. Plaintiff's car was thrown into the bayou, and he sustained severe personal injuries, besides the loss of property above mentioned. The verdict was for $606.24, damages for loss of property. Judgment was entered accordingly. Both parties have appealed.

The court instructs the jury as follows: "(1) The jury are instructed that, under the facts in the case, which are not disputed, the plaintiff was a fellow servant with the engineers and other employés of the defendant company in charge of the colliding trains, and he cannot recover for the personal injuries sustained through the negligence of such employés, and the jury will allow him nothing for such injuries. (2) Although the plaintiff cannot recover for his personal injuries, yet, if he was the owner of the property described in his complaint, and the jury find from the evidence that the same was destroyed through the gross or reckless negligence of the employés in charge of the defendant's trains, he can recover for the same, and the measure of damages will be the fair cash value of such property. (3) If the jury find that the property of the plaintiff was destroyed through the negligence of the employés of the defendant, they will find specially as to whether any portion of said property was unnecessary for the purpose of running the boarding car occupied by the plaintiff." The appellants at the time objected separately to the giving of instructions Nos. 2 and 3. The objections were overruled, and exceptions saved.

The plaintiff and the engineer, whose negligence caused the collision, were in different departments of the company's service. The former belonged to the bridge and building department, and the latter to the transportation department. Neither was under the control of the other. But the fact that they belonged to separate departments is of no consequence, further than it may tend to show whether or not the injury complained of was within the risks "ordinarily incident to the...