Cruce v. Missouri Pacific Railroad Co.

Decision Date22 December 1924
Docket Number67
Citation266 S.W. 981,167 Ark. 88
PartiesCRUCE v. MISSOURI PACIFIC RAILROAD COMPANY
CourtArkansas Supreme Court

Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; reversed.

Judgment reversed, and cause remanded.

John W Stayton and Brundidge & Neelly, for appellant.

The proof was sufficient to show that the train upon which plaintiff was injured was engaged in interstate commerce. 117 Ark. 44; Ann. Cas. 1916B, 482; 60 L. ed. 868. A servant assumes the ordinary risks and dangers of his employment, and the extraordinary risks and dangers which he knows and appreciates. 245 U.S. 441; 38 S.Ct. 139; 63 L. ed. 385; 153 Ark. 77; 160 Ark. 362; 66 L. ed. 482; 147 Ark. 75. The doctrine of res ipsa loquitur applies in this case. 286 F 663; 222 N.Y. 482; 119 N.E. 86; 233 U.S. 80; 34 S.Ct. 566; 58 L. ed. 860; 228 U.S. 233; 33 S.Ct. 416; 57 L. ed. 815; Ann Cas. 194 D, 905; 166 N.Y. 188; 59 N.E. 925; 52 L. R. A. 922; 82 Am. St. Rep. 630; 211 N.Y. 203; 105 N.E. 206; 51 L. R. A. (N. S.) 1221; Ann. Cas. 1915C, 511; 167 F. 16; 92 C. C. A. 478; 114 F. 737; 52 C. C. A. 369; 132 F. 801; 65 C. C. A. 101; 149 F. 667; 82 C. C. A. 115; 8 L. R. A. (N. S.) 677; 80 F. 865; 26 C. C. A. 201; 132 F. 593; 67 C. C. A. 421; 139 F. 737; 71 C. C. A. 555; 123 F. 61; 59 C. C. A. 279.

The court erred in giving a peremptory instruction for the defendant. 89 Ark. 372; 103 Ark. 401.

Pryor & Miles, for appellee.

In an action by a servant against a master for alleged negligence, where the servant is in an equal or better position than any other person to know what constituted the negligence, the doctrine of res ipsa loquitur does not apply. 169 F. 609; 218 F. 604; 96 Ark. 206; 32 Okla. 575. The doctrine of res ipsa loquitur does not apply as between master and servant. 201 F. 637; 138 Ill.App. 131; 229 F. 559; 181 F. 91; 67 C. C. A. 421; 132 F. 593; 139 F. 737; 152 F. 417. Conjecture is an unsound and unjust foundation for a verdict. 98 C. C. A. 281; 174 F. 377; 76 C. C. A. 201; 145 F. 327; 105 Wis. 311; 148 Pa. 180; 23 A. 989; 15 L. R. A. 416; 101 Wis. 371. See also the following cases on the doctrine of res ipsa loquitur: 79 Ark. 76; 87 Ark. 190; 87 Ark. 321; 91 Ark. 388; 96 Ark. 500; 100 Ark. 422; 79 Ark. 437; 100 Ark. 467; 101 Ark. 117. There was no error in directing a verdict in favor of the defendant. 41 Ark. 542; 68 Ark. 316; 95 Ark. 136; 97 Ark. 486; 100 Ark. 156.

OPINION

WOOD, J.

C. M. Cruce was a fireman in the employ of the Missouri Pacific Railroad Company. On the 12th of June, 1922, while engaged in the performance of his duties as fireman on one of the company's locomotives running from Little Rock to McGehee, he was injured by a tool-box falling upon him. The train, at the time of Cruce's injury, was engaged in interstate commerce. Cruce instituted this action on September 13, 1923, to recover damages for the injury, and alleged that, while he was in a stooping position, putting coal in the furnace, the tool-chest fell from the rack in which it was placed, upon his back with great force and violence, causing him severe injury; that the company, its agents and employees, negligently and carelessly permitted the tool-rack, which was constructed above the place where his duties required him to work, to become out of repair and insecure, in that the same was bent or broken and did not have the proper fastening to hold the tool-box in position; that the company, its agents and employees, in placing the same in said rack had negligently and carelessly failed to see that it was properly adjusted so that it would not be thrown from its position by the movement of the train; that the company, its agents and employees, had negligently and carelessly failed to make the proper inspection of the placing of said tool-box in the rack in order to see that the same was not an element of danger. The action was brought under the Federal Employers' Liability Act, approved April 22, 1908.

The company in its answer denied all the material allegations of the complaint, and set up the affirmative defenses of contributory negligence and assumed risk.

The testimony of Cruce was to the effect that, on the morning of June 12, 1922, he was firing an engine that was pulling a freight train from McGehee to Little Rock; that this train was made up in Louisiana.

The testimony on the issues of negligence, contributory negligence and assumed risk, is substantially as follows: The engineer testified that the injury to Cruce occurred at Jefferson Springs, about seventeen miles from Pine Bluff, between Pine Bluff and Little Rock. The groaning of Cruce attracted witness' attention, and he looked around and saw that the tool-box was lying, one end on the apron and the other on Cruce's shoulder. Cruce was lying down in the entry, on his side. The tool-box had fallen out of the rack on Cruce, and witness lifted it off of him. They took Cruce off of the engine at Jefferson Springs and put him on a caboose, and brought him to Little Rock to the hospital. When witness got to Little Rock, he reported the rack on the engine as in bad condition. After lifting the tool-box off of Cruce witness saw one of the fingers was bent on the rack. Witness was familiar with the duties of a fireman on freight trains. When witness got on his engine, he had occasion to get the monkey-wrench out of the tool-box, and, in attempting to lift the box out of the rack, found that he could not move the tool-box with his hands. The rack has a bar of iron something like 3/8 of an inch in thickness and 2 1/2 or 3 inches wide, and there are strips running across and riveted to a sheet on the face of the tank. It has fingers that turn up. The tool-box is made of sheet iron about 15" or 16" long and 4 1/2" or 5" wide. The tool-box sits in the rack. The prongs stood up at each end about three inches high, and the strips of iron forming the rack turn up and make what they call the fingers of the rack. The strips of iron stick up in front of the box about two or three inches high. The box is held at the back by the sheet iron of the tank. The two strips were riveted to the tank, and then turned straight out the width of the box and then turned up three inches. The prongs or fingers, two in front and one on each end, held the box in the rack. The left prong or finger on the rack was bent out to an angle of about 45 degrees, and that left one prong straight up on the front. The one front prong and the prong on each end would keep the box from falling out. Witness didn't see how the bent prong had anything to do with the box falling out. The rack was bolted to the top sheet that makes a part of the front part of the coal tender. There is a space in the tank where the coal stays that is surrounded by the tank that holds the water. The bottom of the tool rack is about four and a-half feet from the floor. The box itself was four or four and a-half feet high. From the door of the firebox to the gates that hold the coal in the tank running through the center of the engine is something like 7 1/2 feet. The coal gates were right under where the tool-box hung. When the fireman stoops down to take up a scoop of coal, he stoops under the tool-box. It is something like 4 1/2 feet from the place where he takes his coal to the box. The bent prong of the tool-rack would be in plain view of him when he turned each time to get the coal. Witness had never noticed the bent prong until he picked the tool-box off of Cruce. The witness looks forward more than the fireman to see where the engine is running. The box is a portion of the tank equipment. The fireman has charge of the coal of the engine, and loads it. He also takes the water. In order to get over the water tank the fireman goes over the tank wall by the box or around it. It is usual for him to go straight over. The fireman had a better opportunity than witness to observe and inspect the condition of the box, as he worked under it and around it. It was the duty of the fireman to keep a lookout.

The plaintiff, Cruce, testified, in addition to his testimony already set out, that he had been working as a fireman on the Missouri Pacific nearly three years when the injury occurred. He was injured near Jefferson Springs by the tool-box falling out of the rack on to his back. The rack was fastened on the top of the cab just over the coal gates. It was 5 1/2 or 6 feet over the top deck. One as tall as witness would have to climb over the coal gate to get tools out of the box, if it was necessary for him to get them. The company had a man at the end of the terminal at the roundhouse to put the tool-box in the rack for the engineer's use. Witness had nothing to do with that. Witness was in a stooping position, putting in the coal. He had reached back for the second or third scoop, and, as he was in the act of opening the firebox, the tool-box fell out of the rack and hit him between the shoulders, in the small of the back. The tool-box would weigh between fifty and seventy pounds. Witness had not noticed the tool-box when he got on the engine, further than looking up to see if the coal gate, the shaker bar, and clinker lever were in proper place. Witness noticed that the box was in the rack just by glancing at it. He saw nothing wrong about it. When the box fell on witness, it knocked him down. He remembered the engineer stopping the engine and whistling for the crew to come. About the last witness remembered was when they were taking him off of the engine. Some people had got up there about that time, and witness heard them ask the engineer, Read, if witness was dead or killed. Witness heard a lady's voice ask Mr. Read if witness was killed. He said he didn't know. She asked what happened, and he said the tool-box fell on witness. She asked him how come it to fall, and ...

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