Dardanelle & Russellville Railway Company v. Brigham

• Decision Date: 27 February 1911
• Citation: 135 S.W. 869,98 Ark. 169
• Parties: DARDANELLE & RUSSELLVILLE RAILWAY COMPANY v. BRIGHAM
• Court: Arkansas Supreme Court

135 S.W. 869

98 Ark. 169

DARDANELLE & RUSSELLVILLE RAILWAY COMPANY v. BRIGHAM

Supreme Court of Arkansas

February 27, 1911

Appeal from Pope Circuit Court; Hugh Basham, Judge; reversed.

Judgment reversed and cause remanded.

J. W. & M. House and J. W. House, Jr., for appellant.

1. The proof does not show any negligence on the part of the defendant company. Under the rules and under the law as imposed by statute, each company was required to keep its trains under control while within the yard limits, and to keep a constant lookout. Appellant had the right to assume that these rules and statutes would be obeyed by the other company, and that the engineer of the local freight would observe the rules imposed upon him. There was therefore no reason why appellant should have expected a collision under the circumstances and conditions under which it did occur and negligence on the part of appellant will not be presumed.

2. If it be conceded that appellant was guilty of negligence, such negligence was not the proximate cause of the accident. In order to be a proximate cause, it must be an independent cause, which is adequate to and does bring about an accident or injury. It supersedes any remote cause. 57 Am. & Eng. Ry Cases (N. S.) 71.

Where a responsible agent intervenes between the original negligence and the injury, the line of causation is thereby cut off, and the originally negligent party is relieved from liability. Hence, even if appellant was negligent, the conduct of the engineer of the St. Louis, Iron Mountain & Southern Railway Company was an independent act which produced the injury and became the proximate cause thereof, relieving appellant from liability. 49 Am. St. Rep. 199; 27 Id. 753; 23 Id. 220; 117 Mass. 533; 24 R. I. 292; 96 Am. St Rep. 713; 66 Ark. 68, 70; 92 Ark. 138; 39 Am. St. Rep. 251; 124 S.W. 543; 83 Ill. 56.

3. If it be conceded that appellant was a joint tort feasor with the St. Louis, Iron Mountain & Southern Railway Company, the settlement between appellee and the latter company on June 21, 1909, constituted a complete bar to this action. 73 Ark. 14; 15 Am. Dec. 536; 32 N.E. 273; 41 Am. Dec. 371; 17 A. 338; 36 Am. Rep. 833; 37 Cal. 216; 136 Mich. 175; 8 Bacon's Abridgment, Bouvier's Ed., tit. "Release," p. 227; 34 Vt. 390; 20 Ia. 317; 113 Cal. 426; 28 Wash. 428; 92 Am. St. Rep. 864 and note at p. 872; 4 P. 1165, 1167; Cooley on Torts 139; 15 Am. Dec. 536.

4. The foregoing authorities are applicable in all cases where two or more parties are guilty of a tort whether they joined in the commission of the tort or not. But the element's are wanting that would constitute the two companies joint tort feasors. In order to constitute this relation, two or more parties guilty of a tort must have acted in concert for a common purpose and common end; but here the parties were acting independently. Hence, under these conditions, when the person injured makes a settlement or compromise with the party who was the active moving cause of the injury, the other tort feasor is discharged. 126 N.C. 701; 78 Am. St. Rep. 677; 59 S.W. 920; Cooley on Torts 166-168; 30 Am. St. Rep. 685; 5 Am. Rep. 368; 40 Id. 430; 57 Am. St. Rep. 713.

J. T. Bullock and R. B. Wilson, for appellee.

1. Authorities cited by appellant in support of the contention that the proof fails to show any negligence on its part would be applicable to issues which might arise if this were a suit between it and the other company. But that is not the issue here. The question is, did the master discharge its duty to the servant under the circumstances of this case? If it did not, it should respond in damages, and it is no defense to appellant that some one else was also negligent. Smith's Whittaker on Negligence, 38, and authorities cited; 29 Cyc. 496; Id. 498; 61 Ark. 381; 129 Am. St. Rep. 663; 84 Id. 295.

2. The agreement entered into by appellee with the St. Louis, Iron Mountain & Southern Railway Company was not a settlement and satisfaction of her claim for damages against appellant. It is not claimed that appellee was paid in full nor that she gave indemnity to the former company from further liability; but, on the contrary, she expressly reserved in the contract the right to proceed against both companies. 2 Ark. 57; Id. 222-3; 4 Ark. 203, 207; 70 Ark. 197; 12 Ark. 164; 7 Ark. 332; 45 Ark. 290; 1 Parsons on Cont. 23, 162; 1 Wharton on Cont. § 1037; 1 Lindley, Part. 433; Addison on Cont. 107; 34 Me. 296; 29 Ia. 448; 86 Ark. 329; 88 Ark. 473; 129 F. 203, 63 C. C. A. 361; 122 N.W. 499; 83 S.W. 258; 93 S.W. 166; 173 N.Y. 455, 66 N.E. 133; 98 P. 784.

This is a case of concurrent negligence, resulting in the injury and death of appellant's intestate. The act of one of these joint contributors to the accident was the act of both, and they are jointly and severally liable for resulting injuries. As to the appellant, the acts of its engineer were the acts of a vice principal, or master. 87 Ark. 587; 89 Ark. 522. And deceased did not assume the risk of negligence on the part of the master. 90 Ark. 223; 34 Am. St. Rep. (Ill.) 52. In order to render a party liable for injury resulting from negligence, it is sufficient if that party's negligence, concurring with one or more efficient causes other than the injured party's fault, is the proximate cause of the injury. 73 Ark. 116; 106 U.S.700; 36 Am. St. Rep. 655 and note. Neither did he assume the risk of injury from the negligence of the other company. 38 N.Y. 260; 64 N.Y. 138; 39 Minn. 328; 78 Cal. 454; 73 Ark. 116.

J. W. House and J. W. House, Jr., in reply for appellant.

1. It is well settled that an "accord and satisfaction" may be had upon the payment of any sum agreed upon, or upon the execution of an agreement to pay a sum agreed upon, as was done in this case. 114 S.W. 451; 31 Am. Rep. 47. See also 72 P. 875; 62 L. R. A. 760; 24 Conn. 613, 621; 6 Wend. (N.Y. ) 390-391; 66 N.W. 606-614; 53 P. 229; 11 Col. App. 384; 13 P. 198-201; 65 Mo.App. 55-59; 53 P. 229; 71 P. 885; 11 A.D. 93-96.

Where, in the discharge of one joint tort feasor, it is stipulated that his release shall not discharge the other or others, the weight of authority is that such a release discharges all the tort feasors, notwithstanding the stipulation to the contrary. 45 Md. 60; 25 Hun 543; 35 Hun 94; 66 N.Y.S. 1066; 72 Id. 1084; 2 Ohio 89; 2 Hen. & M. (Va.) 38; 92 Am. St. Rep. 872, 876, note, 864; 32 F. 338; 150 F. 559; 125 Pa. 397; 66 Cal. 163.

2. Where the servant has equal opportunity as the master to know the character of the services he is to perform, and undertakes to perform the same, he assumes the risk in the performance thereof. 139 N.Y. 369; 12 S.W. 172; 110 Wis. 307. And where the servant's means of knowledge, or opportunity to know, is equal to the master's, he assumes the risk. 1 Labatt, M. & S. § 404; 29 Conn. 548; 71 Hun 127; 59 N.W. 217; 68 F. 630.

OPINION

MCCULLOCH, C. J.

Appellee 's intestate, J. L. Brigham, while working for appellant as a locomotive fireman, was killed in a collision of his engine with one of the St. Louis, Iron Mountain & Southern Railway Company on the main line of the latter's track at Russellville, Ark. Appellant operates a short line of railroad between Russellville, a station on the St. Louis, Iron Mountain & Southern Railway, and Dardanelle. Its railroad is connected with the Iron Mountain line with a "Y" a short distance east of the station at Russellville. The west leg of the "Y" runs parallel with the main line of the Iron Mountain for some distance in the direction of the station, and connects with the main line of that road about 1,200 feet east of the station. All of the side tracks and switches there are owned by the St. Louis, Iron Mountain & Southern Railway Company, and constitute a part of its yardage. One is a house track, which runs off from the south side of the main line from a point between the depot and appellant's connection with the main line to the freight house. The other side tracks are on the north side of the main line of the Iron Mountain road, the first one being a passing track, and three others known in their order as Nos. 1, 2 and 3. There is a connecting switch between the main track and the passing track a short distance west of the station, and the only other connection with the main track and the other tracks on the north side thereof is about a half-mile east of the station. The result of this is that, in switching cars from the track of appellant's road to the side tracks on the north side of the Iron Mountain main line track, or vice versa, it is necessary to travel along the Iron Mountain main track a distance of something like a fourth of a mile. Appellant's road has no connection except with the St. Louis, Iron Mountain & Southern, and necessarily receives all of its through freight from that road.

On May 2, 1904, the two companies (appellant and the St. Louis, Iron Mountain & Southern Railway Company) entered into a written contract covering traffic arrangements between them, in consideration of certain mutual undertakings and the payment by appellant to the other company of a monthly rental of $ 35 whereby appellant was required to do the switching and was allowed to use the tracks and station of the other company. Two clauses of the contract which are material read as follows:

"5. The parties of the first part hereby grant to the party of the second part the right to connect the west leg of the "Y" at Russellville with the track of the said parties of the first part at the point indicated by the letter G on the blue print map hereto attached, and to operate its trains and cars with its own motive power over along and upon the track of said parties of the first part between the point indicated by the letters G and E upon the blue print...