Choctaw, Oklahoma & Gulf Railroad Company v. Thompson

• Decision Date: 11 February 1907
• Citation: 100 S.W. 83,82 Ark. 11
• Parties: CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. THOMPSON
• Court: Arkansas Supreme Court

100 S.W. 83

82 Ark. 11

CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. THOMPSON

Supreme Court of Arkansas

February 11, 1907

Appeal from Logan Circuit Court; Jeptha H. Evans, Judge; reversed.

Judgment reversed and cause remanded.

E. B Peirce and Buzbee & Hicks, for appellant.

1. The court erred in refusing to direct a verdict for defendant. The proximate cause of the injury was plaintiff's own contributory negligence. 108 F. 747; 128 Id. 529; 144 Id. 668; 70 Ark. 603; 51 Id. 467; 53 Id. 117; 54 Id. 389.

2. It was error to refuse to allow defendant to introduce the application for employment by plaintiff.

3. The court erred in admitting incompetent testimony on the part of plaintiff as to violation of rules. 1 Labatt, Master & Servant, p. 516; 20 Am. & Eng. Enc. Law, p. 106.

4. There was error in the instructions given and refused, on the question of assumed risk by employees and contributory negligence. 54 Ark. 389; 35 Id. 613; 56 Id 232; 48 Id. 333; 68 Id. 316; 58 Id. 125; 46 Id. 388; 57 Id. 76; Ib. 503; 58 Id. 324; 126 F. 485; 77 Ark. 367.

5. There was no statute in Oklahoma abrogating the common law rule of fellow-servants, and under the common law car repairers, car inspectors and brakemen are fellow-servants. 46 Ark. 568; 51 Id. 479; 54 Id. 293; 61 Id. 306; 67 Id. 306.

6. The closing argument of plaintiff's counsel was prejudicial. 74 Ark. 256; 74 do. 298.

Randell & Wood and Wilkins, Beaty & Vinson, for appellee.

1. Plaintiff not barred by contributory negligence, even if he chose the more dangerous way of making the coupling. 1 Labatt, Master & Servant, p. 842. The test is whether he knew the way selected to be dangerous, or the danger was apparent and obvious and the other method was safe. 100 Ala. 451; 14 So. 287; 99 Ala. 346; 4 Thompson on Negligence, § 4726.

2. The evidence shows habitual disregard of the rule of the company and knowledge and acquiescence of appellant is inferable from the universality and notoriety of the custom. 1 Labatt, Master & Servant, 516.

3. There is no evidence that plaintiff knew that the frogs were unblocked, or that he comprehended or ought to have comprehended the danger. 92 S.W. 245.

4. The defendant was bound to furnish a reasonably safe place to work, and reasonably safe tools and appliances, etc., and the question of assumed risk and contributory negligence is for the jury, the burden being on the defendant. 47 S.W. 311; 43 Ark. 129; 54 Id. 389; 48 Id. 333; 33 S.W. 334; 50 S.W. 417.

5. Testimony as to the violation of the rules was admissible. 1 Labatt, Master & Servant, 516; 51 S.W. 580; 56 Id. 654; 50 F. 718.

6. No error in the court's charge. 48 Ark. 348; 4 Thompson on Negligence, p. 1063; 54 S.W. 869; 129 Mass. 268; 3 Elliott on Railroads, § 1278; 92 S.W. 245; 95 Id. 168.

OPINION

MCCULLOCH, J.

The plaintiff, H. J. Thompson, was employed as brakeman by the defendant, Choctaw, Oklahoma & Gulf Railroad Company, and instituted this action in the circuit court of Logan County to recover damages for injuries received while at work coupling cars for defendant in its yards at Oklahoma City in Oklahoma Territory. His leg was run over and mashed, so that it became necessary to amputate it below the knee, and the jury returned a verdict in his favor, assessing his damages in the sum of six thousand dollars. His train (a work train) was made up in the yard for a trip, and he was directed by the conductor to bring the engine out of the round house and couple it to the train. He proceeded to do this, and signalled the engineer to back up so as to couple the rear car to the front car of the main part of the train standing on the main track. He started back to the train for the purpose of opening the knuckle of the coupling on the end of the front car, when he was overtaken, in about twelve or fourteen feet of the front car, by the end of the car attached to the backing engine, and he reached for the lever controlling the coupling on the moving car, but found there was no lever, and jumped in between the car to make the coupling. What occurred then can best be described in his own language as follows:

"I had to make two or three attempts to get this knuckle open. It was an old-fashioned Janey coupler, and when I got it open we were near to the car. The pin had to be held up to make the coupling. If I had dropped it, it would have struck the other knuckle, and closed and locked it. I had to hold this pin to make this coupling, and in doing so I caught my foot in an open frog."

Before he could extricate his foot the wheels struck it. There was a lever on the standing car on the side across the track which could have been used in making the coupling, but plaintiff would have had to cross the track to reach it, and he testified that he could not have done so before the moving cars came against the other.

The evidence, which on this subject is undisputed, establishes the fact that on appellant's road the frogs were all unblocked, and that while on some railroads the frogs were blocked, it was rarely ever done. The plaintiff testified that he had never examined to see whether the frogs on appellant's road were kept blocked; that he was familiar with the switches, but never noticed whether or not the frogs were blocked. He had been working on appellant's road as brakeman for three months when the injury occurred--had been in railroad service about three years, of which time he had been brakeman about ten months.

Negligence on the part of the defendant is alleged in failing to provide a lever on the car for use in coupling and in failing to have blocked the frog where plaintiff was injured.

The defendant asked the court to give an instruction to the jury telling them not to consider the alleged negligence of the defendant in failing to block the frog. The court refused to so instruct, but gave instructions submitting to the jury for their determination whether the defendant was guilty of negligence in failing to have the frog blocked, and whether or not the plaintiff had, under the circumstances, assumed the risk of danger from the use of unblocked frogs. Appellant assigns error of the court in this respect, and contends that, according to the undisputed testimony, the plaintiff should be held to have assumed the risk of such damages, and that the question should not have been submitted to the jury. It should be noted in the outset that there is no allegation of negligence on the part of defendant in failing to give warning or instruction to the plaintiff of the dangers of the service. Nor does the proof sustain such a charge. The plaintiff was at the time he entered the service of defendant company a full-grown man of experience in the work in which he was about to engage. So there is in this case no element of inexperience on his part, or of the duty on the part of the defendant to warn or instruct him as to his work or the dangers incident thereto. We have the sole question whether a brakeman of experience who enters the service of a railroad company using unblocked frogs, a part of whose duties it is to switch cars, and who has necessarily an opportunity to observe the condition of the switches, is deemed to have assumed the risk of whatever danger there is from the use of unblocked frogs.

In the case of Davis v. Railway, 53 Ark. 117, where suit was brought to recover damages on account of the death of a youth of limited experience in railroad work while engaged in coupling cars, Chief Justice COCKRILL, speaking for the court, said:

"The question for the jury's consideration was not whether the railway company was guilty of negligence in failing to block the space between the main and guard rails; because, even if the failure to do that could, upon the evidence adduced, be found to constitute negligence (as to which see Chicago, R. I. & P. Ry. Co. v. Lonergan, 118 Ill. 41, 7 N.E. 55; Rush v. Mo. Pac. Railway, 28 Am. & Eng. R. Cas. 488, and note; Mayes v. Chicago, R. I. & P. Railway, 63 Iowa 562, 14 N.W. 340; Huhn v. Mo. Pac. Railway, 31 Am. & Eng. R. Cas. 221), the proof shows that the deceased continued in the service after he knew, or, what is the same thing, had full opportunity to know, that the rails were unblocked." And in Railway Co. v. Davis, 54 Ark. 389, the court, following the rule in the case just cited, held that an employee who took service with the railway company using unblocked frogs assumed the risk of the danger incident thereto, and could not recover by reason of the failure of the company to block the frogs. In disposing of the question the court said:

"The plaintiff charges negligence in the use of unblocked frogs, not because they were badly constructed, out of repair, or exposed operatives to latent dangers, but because a different kind of frog would have been less dangerous to operatives. Unblocked frogs were in universal use on the roads in this State, including the entire road of the defendant. The injured employee knew, when he entered the defendant's service, that its frogs were unblocked; and if there was danger in their use, he knew it was an incident to the service he was entering. When a master employs a servant to do a particular work with a particular kind of implement or machine, he agrees that they are sound and fit for the purpose intended, so far as ordinary care and prudence can discover, but does not agree that they are free from danger in their use. The servant agrees to use in the service the particular kind of implement or machine; and if under such circumstances harm comes to him, it must be ranked among the risks he assumed when he entered the service."

It is argued, however, that the evidence in the case at bar does not show that the plaintiff, either when he took service or at the time he was injured, knew that...