Arkansas Central Railroad Company v. Workman

• Decision Date: 05 October 1908
• Citation: 112 S.W. 1082,87 Ark. 471
• Parties: ARKANSAS CENTRAL RAILROAD COMPANY v. WORKMAN
• Court: Arkansas Supreme Court

112 S.W. 1082

87 Ark. 471

ARKANSAS CENTRAL RAILROAD COMPANY v. WORKMAN

Supreme Court of Arkansas

October 5, 1908

Appeal from Franklin Circuit Court, Charleston District; Jeptha H Evans, Judge; reversed.

Reversed and remanded for new trial.

Lovick P. Miles, for appellant.

1. There is no evidence tending to prove that want of instruction as to how to alight from a moving train was the proximate cause of the injury; no instruction was necessary and the law does not require that it be given. Nor was there any defect shown in the step or platform, and it is a matter of common knowledge that a headlight does not throw light back along the side of the engine or train. Hence there was no evidence of negligence, and a verdict should have been directed for defendant.

2. The servant assumes the risks ordinarily incident to service. 56 Ark. 21; 77 id. 374; 56 id. 232; 41 id. 542; 46 id. 388; 39 id. 17. Even a minor is presumed to have knowledge of dangers which he had opportunity to know. 82 Ark. 534; ib. 11.

T. A Pettigrew, for appellee.

1. Failure to instruct a young and inexperienced brakeman as to the proper and safest way in getting off moving trains is negligence. Such an one does not assume the risk. 105 S.W. 882; 56 Ark. 216; 82 id. 534; 53 id. 456; 56 id. 216; 53 id. 117.

2. It is not contributory negligence to get off a moving train when such act is a custom permitted by the company. 105 S.W. 882; 107 id. 1021; 48 Ark. 333.

3. It is the duty of a railroad company to keep its platform in safe condition. 48 Ark. 491; 98 S.W. 441; 78 Id. 483.

4. It is also negligence to permit a step on the engine to be defective. 74 S.W. 897.

OPINION

MCCULLOCH, J.

Appellee is a minor under the age of twenty-one years, and sues appellant railroad company to recover damages for personal injuries received while performing service for the company as brakeman on a freight train. He recovered judgment below, and the company appealed. Appellee was, at the time he took service with the railroad company, eighteen years of age, and was entirely inexperienced in that kind of work. He received the injury complained of during his first day's service, or rather during the night succeeding the first day's service. He made a trip from Paris to Fort Smith during the day, and was injured on the return trip that night. While the train was being slowed down at a station named Ursula for the purpose of discharging freight, and as the engine moved past the platform, he stepped from the tender of the engine, and as he alighted on the platform he lost his balance and fell backward through the opening between two cars and the space between the cars and edge of platform. His arm was mangled, so that it had to be amputated.

Negligence of the company is alleged in several particulars, viz.:

First. That the headlight on the engine was insufficient to enable the brakeman to see the platform clearly.

Second. That the platform was not lighted so that the brakeman could see how to alight thereon.

Third. That the step on the tender of the locomotive from which the brakeman had to alight was "old, out of repair, very sleek and inclined downward," so that it was unsafe for use.

Fourth. That the platform at Ursula was unsafe by reason of being higher than the step on the tender, and was fourteen inches away from the passing cars, or tender.

Fifth. That the train from which appellee alighted was run past the station at a dangerously high speed.

Sixth. That appellant failed to instruct appellee concerning the safest manner of getting off moving trains and to warn him of the dangers thereof.

All of the acts of negligence are alleged in the complaint to have contributed directly to the injury.

The court, by proper instructions, properly took away from consideration by the jury the first and fifth alleged acts of negligence because there was no evidence to sustain them.

It is contended that there was no evidence to sustain any of the charges of negligence, and that the court erred in refusing to take the whole case from the jury.

We are of the opinion, however, that there was evidence sufficient to sustain the third and sixth charges. There was testimony tending to show that the step from which appellee had to alight was old and worn sleek, and was inclined downward, so that appellee's foot slipped when he stood on it. It is true that he did not slip from this step, but he testified that just before he was ready to alight his foot slipped, and he was compelled to grasp the handhold with both hands which probably caused him to lose his balance when he alighted on the platform from the moving train. There is testimony to the effect that in attempting to step from a moving train it is necessary to first release the hand-hold before stepping off otherwise the person will be jerked back under the train. So the slanting and sleek surface of the step on the tender rendered it such an insecure foot-rest that it may have caused appellee to cling too long to the hand-hold in order to prevent slipping off the step, thereby hindering him in successfully alighting. It was, of course,...