Choctaw, Oklahoma & Gulf Railroad Co. v. Craig

• Decision Date: 14 May 1906
• Citation: 95 S.W. 168,79 Ark. 53
• Parties: CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. CRAIG
• Court: Arkansas Supreme Court

95 S.W. 168

79 Ark. 53

CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. CRAIG

Supreme Court of Arkansas

May 14, 1906

Appeal from Logan Circuit Court, Southern District; Jeptha H. Evans Judge; affirmed.

Judgment affirmed.

E. B Peirce and T. S. Buzbee, for appellant.

1. Under the rules established by this court, the evidence is insufficient to prove negligence on the part of appellant. 44 Ark. 529; 46 Ark. 567; 51 Ark. 467; 54 Ark. 395; 74 Ark. 19; 67 Ark. 295. Appellee assumed the risk. One who, knowing and appreciating the danger, enters upon a perilous work, even though he does so by order of his superior, must bear the risk. It is his duty to inform himself of the danger; and if he negligently fails to do so, he will still be held to have assumed them. 77 Ark. 367; 67 Ark. 306.

2. It was error on the part of the court, after the jury returned and requested that the instructions be repeated to them, to give them an additional instruction, on the subject of contributory negligence. Being given at a time when counsel could not explain it in argument, it had the effect of a final summing up of the law of the case, and of eliminating the question of assumed risk.

3. The verdict is excessive. It is in proof that appellee's earning capacity was not decreased, and that since the accident he has advanced to a higher position, and is receiving a higher salary than before.

4. The cause should be reversed because of improper argument of counsel, the effect of which was to arouse the passion and prejudice of the jury, and to lead them to award an excessive amount of damages. 74 Ark. 256; 74 Ark. 298.

Randell & Wood, Wilkins, Beatty & Vinson and Robert J. White, for appellee.

1. Appellee assumed only such risks as were ordinarily incident to the service in which he was engaged, and did not assume any risk caused by the negligence of appellant. 80 S.W. 79 and 1073. He was not bound to inspect, but had the right to assume that appellant had performed his duty, and that the coupling apparatus was reasonably safe, unless the danger was obvious. He must not only have known or observed the defect that caused the injury, but also have appreciated the danger. 81 S.W. 72; Wood on Master and Servant, § 376; 80 Tex 85. See also 30 S.W. 758; 103 F. 265. The question of assumed risk was for the jury. 47 S.W. 311. If appellee did not discover the danger until at the very time of his injury, he did not assume the risk. 50 S.W. 417; 91 Tex. 437.

2. The court's charge on the subject of contributory negligence, at appellee's request, was in response to the issues raised by appellant, and the latter can not complain.

3. Unless the verdict is so excessive as to show that it is the result of passion and prejudice, corruption or failure on the part of the jury to appreciate the law and the facts, it will not be disturbed. 58 Ark. 136 and cases cited.

4. Appellant will not be heard to object here to argument of counsel, without having objected at the time the language complained of was used. 85 S.W. 428; 2 S.W. 505; 32 S.W. 497.

E. B. Peirce and T. S. Buzbee, for appellant in reply.

There is evidence that appellee did know the existence of the particular defect, and of the danger arising therefrom; but if he did not, still the company was not bound to give him specific notice of defects. 78 Ark. 213, and cases cited.

OPINION

HILL, C. J.

Craig was a brakeman in appellant's service on a freight train running from Hailyville to Ardmore, Indian Territory. His train hauled a "dead engine," that is, one carried by the train, not by its own steam, and the engine was put in the train after 16 cars and was followed by eight cars. There was difficulty with this engine at several stations. This was known to Craig in a general way. When the station of Olney was reached, the conductor told Craig that the engine had broken loose again, and told him to come and help to couple it, as he expected further trouble with it. The engine and car to which it was coupled were equipped with automatic couplers, which were coupled by a lever at the side, so that the brakeman does not have to go between the cars to make a coupling. The difficulty in this instance was that the coupler on the engine was about seven inches lower than the coupler on the car to which it must be attached, thereby preventing the knuckles of the couplers fastening. This necessitated a link and pin coupling, and, owing to the difference in height of the couplers and the presence of the pilot of the engine in the space where the brakeman had to go to make the coupling, it was more dangerous than the usual pin and link coupling.

The other two brakemen of the train were placed between the engine and car with an iron bar to lift the lower coupler to the height of the higher one, and Craig was directed by the conductor to then make a link and pin coupling. He attempted to do so, and in straining on the link to try to bring it to the level of the coupler the impact came, the coupling failed, and he was unable to get his hand out in time, and his fingers were cut off. A jury at Booneville gave him $ 2,500 damages.

The chief contention on the appeal is as to the sufficiency of the evidence.

1. As to the negligence of the company: The court, under proper instructions, left to the jury the determination of the question whether the company had used care and prudence in furnishing its employees a reasonably safe place to work and safe means and instruments to carry on its service. The engine was placed in this train at Hailyville, where it was made up, and where common prudence called for an inspection of the train and its condition before starting on the journey. Even a casual examination would have shown that the automatic coupler could not be used with this engine, and the link and pin coupler had to be resorted to. That these link and pin couplers are dangerous is a matter of common knowledge. Their thousands of victims moved Congress to forbid their use in interstate traffic. This was more dangerous than the usual link and pin coupler, owing to the difference in height of the couplers and the presence of the pilot in the space to be used by the brakeman in making this coupling. The jury were fully warranted in finding negligence in not providing a safe method of coupling the engine to the car and in placing the engine in a train where its coupler did not fit to the car next to it.

2. Does the evidence show this was a risk assumed by Craig? In the recent case of Choctaw, O. & G. Rd. Co. v Jones, 77 Ark. 367, 92 S.W. 244, the subject of assumed risk was fully considered by the court. As therein shown, where the risk is not one of the ordinary risks of the employment, but is brought about by the negligence of the master, then there is no presumption that the risk is assumed. "The plea of...