Arkansas Midland Railway Company v. Worden

• Decision Date: 05 April 1909
• Citation: 119 S.W. 828,90 Ark. 407
• Parties: ARKANSAS MIDLAND RAILWAY COMPANY v. WORDEN
• Court: Arkansas Supreme Court

119 S.W. 828

90 Ark. 407

ARKANSAS MIDLAND RAILWAY COMPANY v. WORDEN

Supreme Court of Arkansas

April 5, 1909

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; affirmed.

Judgment affirmed.

E. B Kinsworthy and Bridges, Wooldridge & Gantt. for appellant.

1. In cases of injuries to servants happening in the course of their employment, negligence of the master is not inferred from the mere happening of the accident which caused the injury. It must be proved, the burden being on the party alleging it. Here no negligence is proved, nor any causal relation shown between the absence of the light and lock and happening of the accident. 48 Ark. 460; 75 Ark. 76; 44 Ark 524; 82 Ark. 372; 87 Ark. 321; 85 Ark. 600; 72 S.C. 398; 5 Am. & Eng. Cas. 167, note 5, cases cited; 75 Ark. 263. If a defect in the switch or track at the place of derailment had been shown, it would have been necessary, in order to make out his case, for appellee to show that the company had notice of it. 46 Ark. 555; 51 Ark. 467; 79 Ark. 437; 74 Ark 19.

2. In view of his experience, this accident is one of the risks assumed when appellee accepted the employment. 56 Ark. 206; Id. 232; 78 Ark. 213; 81 Ark. 343; 82 Ark. 11. If there was no light or lock, it was obvious to one engaged in switching cars. He is charged with notice of these facts, and assumes the risk of running his engine over this track. 53 Ark. 117; 54 Ark. 389.

3. The master is not an insurer of the servant's safety, and is held to ordinary care only in providing a safe place and appliances in and with which to work. 80 Ark. 260, and cases cited.

H. A. Parker, for appellee.

1. Not only is the master required to furnish a reasonable safe place and appliances in which and with which the servant is to work, but, if the servant is inexperienced, the master must also instruct him in his duties and warn him of the danger incident thereto. 81 Ark. 247; 87 Ark. 471.

2. It was the duty of the master to provide a light and lock at the switch, and failure to do so was negligence on the part of the master, and was a risk not assumed by the servant. 85 Ark. 390; 87 Ark. 321.

3. The facts and evidence fail to establish contributory negligence. The danger was not obvious to one of the youth and inexperience of the deceased. 82 Ark. 83.

MCCULLOCH, C. J. Chief Justice COCKRILL.

OPINION

MCCULLOCH, C. J.

This is an action instituted against the Arkansas Midland Railway Company by F. G. Worden as administrator of the estate of his deceased son, Beecher Worden, to recover damages sustained by reason of the latter's death, which is alleged to have been caused by the negligence of the railway company. The elements of damages claimed are bodily pain and suffering endured by decedent between the time of his injury and his death, and the expected contributions thereafter to his father. Beecher Worden was between 20 and 21 years of age at the time of his death, and was employed by the railway company as engine hostler, his specific duties being to take engines to and from the depot and round house at Helena, Ark., one of the termini of the road. He received the injuries about 9:30 o'clock on Saturday night, December 28, 1906, and died the following Monday morning. His engine left the rails, fell down an embankment on its side and pinned him underneath, where he was badly scalded by escaping steam and hot water, and remained in that helpless condition for about five hours before he could be extricated by raising the engine. He suffered pain from the moment of his injury to the time of his death, so intense that the efforts of skilled medical attendants failed to alleviate it. All the witnesses who saw him testify that his suffering was intense, and that all the time he lay beneath the overturned engine he begged most piteously to be killed, so as to end his suffering. The trial jury returned a verdict in favor of the plaintiff, fixing the damages at $ 4,000 for the pain and suffering and $ 1,300 for the expected contributions to the father.

The young man was in the discharge of his customary duties, taking the engine from the depot to the round house, and was backing it along the usual route over the main track, when it was derailed and overturned at or near a switch. The switch in question is what the witnesses term a "three-throw," or stub switch; the two rails of the main track being moved by the use of the lever to and from the three connected tracks so as to allow trains to pass over either of the tracks as desired. The two movable rails are called stub rails. When an engine approaches the switch from the stub rail end of the track, it will of course pass onto one of the tracks to which the stub rails are at the time connected; but if it approaches from the other direction, and the stub rails are connected with another of the three tracks, then a derailment of the engine necessarily results, for it runs off the ends of the disconnected rails.

Worden's engine was backing along one of the parallel tracks, approaching the stub rails, and, as before stated, it was derailed at or near the switch. There is some conflict in the testimony as to the precise point at which the derailment occurred; but there is sufficient evidence to warrant the finding that it occurred at the switch, and ran a short distance on the ties before it overturned down the embankment. There was evidence to the effect that the switch was thrown so as to disconnect the stub rail, and the jury were justified in finding that this was true, and that the engine and tender were derailed on that account. There was no lock on the switch nor any lights of any kind, and this is the basis of plaintiff's charge of negligence against the railway company, in failing to exercise ordinary care to provide a reasonably safe place for its servants to work in.

The evidence does not disclose how the switch came to be thrown--whether by accident or design--but it is manifest that if signal lights had been displayed at the switch Worden and his helper, who was on the engine with him, would have been warned of the disconnected track which they were approaching, and could have averted the injury. Several witnesses testified that it was dangerous not to display a light at switches, and the evidence abundantly establishes the fact that the defendant was guilty of negligence in this respect, and that this negligence was the proximate cause of Worden's injury and death.

The defendant pleaded in its answer, and attempted to prove contributory negligence on the part of Worden in running the engine at too great speed, and in failing to stop the engine after it became derailed and was running on the ties. This issue was submitted to the jury, and the finding, which is sustained by ample evidence, was against the defendant. The testimony shows by what appears to us to be a clear preponderance that the engine was moving at the ordinary and customary rate of speed for the yard limits, and that as...