Chicago, Rock Island & Pacific Railway Company v. Murray

• Decision Date: 06 April 1908
• Citation: 109 S.W. 549,85 Ark. 600
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. MURRAY
• Court: Arkansas Supreme Court

109 S.W. 549

85 Ark. 600

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. MURRAY

Supreme Court of Arkansas

April 6, 1908

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

The appellee was a "switchman and brakeman" in the employ of appellant. It was his duty, under the direction of a foreman, to turn switches, cut off cars, and to look after the placing of cars. In approaching a "bunch of cars," it was appellee's duty to give a slow signal. On the night he received his injuries appellee was riding on a train consisting of an engine and nineteen or twenty cars. The engine was backing the cars clown to be placed in certain designated positions. Appellee was riding on the front car or the car most remote from the engine in the direction the train was backing. It was a flat car loaded with steel. The usual standard on such cars was a piece of wood six by six cut down to four and one-half inches so as to fit in the socket on the side. The car on which appellee was riding was not provided with such standards, but had instead, on the side where appellee was riding, what is termed "angle bars." These were two bars of iron bolted together, and put in the socket for a standard. The angle bar did not fit in the socket closely. On the night appellee received his injuries, they were approaching some other cars standing down the track, and appellee gave the engineer a "slow signal." He describes the manner in which he gave the signal as follows: "I had hold of an angle bar stuck in a socket with one hand and a grab iron with the other hand and I had one foot on the step and the other on the oil box because the grab iron was so close to the step that it was impossible for a man to put his foot there, or both of them there, and hold to the grab iron. I turned loose with my right hans that I had hold of the grab iron when I gave that slow signal, and the angle bar turned and threw me off." Appellee had his toes crushed, and was otherwise injured. He sued the appellant, alleging in his complaint "that the appellant was negligent in furnishing a defective standard; that said standard was defective in that it was loose in its socket, and that it was not the usual and ordinary standard used on the ordinary flat car, the same being a fish plate, or piece of iron; that at the time of boarding said train appellee did not know the condition and character of said standard; that while holding to said standard it slipped in its socket and caused appellee to be thrown under said car, resulting in an injury to appellee's foot, etc."

The appellant answered denying that appellee was injured through any negligence on its part, and setting up that his injuries were caused by appellee's own negligence.

After the evidence was in appellant asked the court to instruct the jury to return a verdict in its favor, which the court refused. The verdict and judgment were in favor of appellee. Motion for new trial was overruled, and this appeal prosecuted. Other facts stated in opinion.

Reversed and remanded.

Buzbee & Hicks, for appellant.

Appellee is not entitled to recover because (1) there was no testimony that the use of the angle bar for the purpose for which it was provided was negligent. 80 Ark. 68. (2) The injury would not have occurred but for appellee's own negligence contributing thereto. (3) If there was any risk in the use of the angle bar, as shown by the testimony, it was obvious and patent to appellee, and he assumed the risk, and the court should have taken the case from the jury. 53 Ark. 129; 56 Ark. 237; 66 Ark. 239.

Westbrook & Brouse, for appellee.

OPINION

WOOD, J. (after stating the facts.)

Appellant contends that the court erred in refusing to instruct the jury to return a verdict in its favor for the following among other reasons, to-wit:

"1. That the plaintiff has failed to show any negligence on part of the company as alleged in the complaint and denied in the answer.

"2. His injuries were the result of his own contributory negligence.

"3. Having full knowledge of the condition of the device, he assumed the risk of using it, as the proof shows he used it."

The only negligence alleged is that appellant furnished a defective standard, one that was loose in its socket, and that slipped when appellee seized it in the act of giving the slow signal.

Appellee stated that "on a car loaded...