Chicago, Rock Island & Pacific Railway Co. v. Lannon

• Decision Date: 29 June 1908
• Citation: 112 S.W. 177,86 Ark. 587
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. LANNON
• Court: Arkansas Supreme Court

112 S.W. 177

86 Ark. 587

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. LANNON

Supreme Court of Arkansas

June 29, 1908

Appeal from St. Francis Circuit Court; Hance N. Hutton, Judge affirmed.

Judgment affirmed.

C. L Marsilliot and Paul W. Evans, for appellant.

An experienced brakeman who enters the service of a railroad company using unblocked frogs, and a part of whose duties is to switch cars, and has an opportunity to observe the condition of the switches, assumes the risk from the use of the unblocked frogs. 82 Ark. 11; 48 Id. 333. An employee is bound to take notice of obvious defects. 77 Ark 367; 58 Id. 217; 56 Id. 206; Id. 232; 57 Id. 76; 48 Id. 460; 46 Id. 388; 41 Id. 542; 54 Id. 389; Id. 289; 161 Mass. 153. Where contributory negligence is the proximate cause of the injury complained of, plaintiff cannot recover. 76 Ark. 10; 62 Id. 245; Id. 158; 61 Id. 549; 57 Id. 461; 56 Id. 457; Id. 271; 36 Id. 371; Id. 41; 39 Id. 17; 57 F. 921. The verdict is excessive. 25 Ark. 380; 39 Id. 491; 43 Id. 449.

N. W. Norton for appellee.

The fact that appellee was in a place of peril was no justification for an injury wilfully or even carelessly inflicted. The train crew were under Lannon's control, and he had a right to assume that nothing would be moved till he announced his readiness. It does not take much weakening of a man only 43 years old, and with an earning capacity of $ 100 per month, to amount to a sum equal to the verdict in this case. The judgment should be affirmed with damages. 80 Ark. 273.

OPINION

BATTLE, J.

James Lannon sued the Chicago, Rock Island & Pacific Railway Company, and states his cause of action as follows: "On the 17th day of June, 1907, he was injured by the negligence and carelessness of a brakeman in the employ of the defendant, Chicago, Rock Island & Pacific Railway Company; that said injury was caused by the carelessness of said brakeman in disconnecting the hose with which the airbrake is operated between the car next to the caboose and the caboose itself; that in disconnecting the hose the said brakeman carelessly failed to shut off the air, with the result that the discharged air caused the end of the hose and heavy iron attachment thereon to be violently thrown against the leg of plaintiff, striking him between the knee and ankle, cutting through his clothing and the flesh on his leg to and injuring the bone; that from said injury plaintiff has suffered great pain, and has lost time from his employment, being as yet unable to work. That said train is what is known as a log train, and is operated by the defendant for the Forrest City Mfg. Co., the train being operated by the employees of the defendant, and the loading, handling and unloading of the logs being done by a crew in the employ of the Forrest City Mfg. Co., of which crew plaintiff was the foreman. Plaintiff in the discharge of his duties as such foreman of the Forrest City Mfg. Co.'s hands, was at all times rightfully in and about said train, superintending the loading and unloading of logs and the management of the loading machinery and tackle; and the injury to this plaintiff occurred while he was about said train in the discharge of his duties as foreman. By the injury above described plaintiff has been damaged in the sum of fifteen hundred dollars."

Defendant, Chicago, Rock Island & Pacific Railway Company, answered and denied the material allegations of the complaint, and pleaded the contributory negligence of the plaintiff as a defense.

The jury in the case, after hearing the evidence and the instructions of the court, returned a verdict in favor of the plaintiff for $ 1112.50. Defendants appealed.

The question in the case is, was the verdict sustained by evidence?

The evidence tended to prove the following facts: The appellant railway company, in the year 1907, operated what is known as a log train for the Forrest City Manufacturing Company in carrying logs. The loading, handling and unloading of the logs were done by a crew in the employment of the Manufacturing Company, of which appellee was foreman. His duties as such foreman were to superintend the loading and unloading of the train, and to manage the loading machinery and tackle, and to direct where the train should stop for the purpose of loading with logs and unloading the same, and when to move after such work had been finished. He had the right to be in and about the train whenever and wherever his duties called him. On the 17th day of June 1907, the train was standing, and the crew of the Manufacturing Company was engaged in loading it. About or near the time the loading was completed, appellee was standing between the caboose of the train and the car next to it, instructing...