Davis v. Railway

• Decision Date: 05 April 1890
• Citation: 13 S.W. 801,53 Ark. 117
• Parties: DAVIS v. RAILWAY
• Court: Arkansas Supreme Court

13 S.W. 801

53 Ark. 117

DAVIS v. RAILWAY

Supreme Court of Arkansas

April 5, 1890

APPEAL from White Circuit Court, M. T. SANDERS, Judge.

Judgment reversed and cause remanded.

Sanders & Watkins for appellant.

1. The first cause of action was based upon sec. 5223, Mansf. Dig.

The court ruled tat only one cause of action accrued for an injury resulting in death, and the later act of 1883, giving the cause of action set out in sections 5225 and 5226 repealed the former action given by section 5223. We submit that this was error.

The cause of action described in section 5223 is simply the cause of action which accrued to the deceased by reason of the injury, and covered only the period from the injury to the death of the injured party. The additional cause of action covers the damages sustained by the next of kin, by reason of the death of the deceased. The elements and measure of damages are entirely different. In the first, the elements of damage are pain, suffering, etc., inflicted by the wrong-doer, and such expenses as the deceased may have been put to in attempting to effect a cure, etc.

In the second, it is simply the loss sustained by the next of kin after the death of the deceased.

Under the construction of the trial court, placed on these statutes, if an injured party should live six months and pay enormous expense bills in caring for himself, and in attempting to effect a cure and then die, no action could be maintained by his administrator to recover anything for the expense, loss of time, pain, suffering or injury, it matters not how flagrant the wrong. The subsequent act did not in terms repeal the former, and covering, as it does, an entirely different subject-matter, and relating entirely to a different cause of action, we know of no canon of construction by which the court could arrive at its conclusion. 41 Ark. 295; Thomps. on Negl., pp. 1285-6; 38 Vt 294; 4 Bissell, 430.

2. The second cause of action is based on secs. 5225-6, Mansf. Dig.

This was not an ordinary case of an employe suing the master for defective appliances. The ordinary rule in such cases was an element in this case, but the principle adopted by the courts, controlling and qualifying the usual rule of the master's duty to the employe, when the employe is an inexperienced boy of less than mature years, was lost sight of by the court in its charge given for defendant, and was eliminated and refused in the charge asked by plaintiff.

The plaintiff's case rested upon two phases, viz: The defendant was negligent in the construction and maintenance of its guard rails, even if the deceased was found to have been experienced and capable of understanding the hazard and risk of the employment, and to have waived the danger and defect by continuing in the service; and, even if the danger was patent and could have been seen and appreciated by an ordinary employe, the deceased was so inexperienced and youthful that he was incapable of understanding and assuming such risks and dangers as are contemplated by the usual rule applied to master and servant. The court erred in refusing the second instruction for plaintiff, and in giving those for defendant, thus compelling the jury to be controlled by the law applicable to adult and experienced employes. A youth of immature years, inexperienced and incapable of understanding and appreciating the dangers and risks incident to the service, does not waive, nor assume, the unknown hazards incident to his employment. 66. Wis. 277; 8 A. & E. R. R Cas., 527.

The sixth instruction for defendant was error. Mere knowledge that the rail was unblocked was not sufficient; he must have known, or been informed of, the danger of an unblocked guard rail. A mere knowledge of the defect is not a waiver of the risk and hazard. 70 Cal. 261; 8 A. & E. R. R. Cas., 527; 32 Minn. 233; 32 Alb. Law J., 319; 60 Mich. 502; 31 A. & E. R. R. Cas., 221; 68 Wis. 520; 72 Cal. 197; 128 U.S. 91; 37 Minn. 409.

The current of authority is now and always has been that, in the case of an ordinary employe, there must not only be a knowledge of the defect, but also a knowledge of the danger growing out of such defect. And the authorities are uniform that in a case where the employe, from youth or inexperience, is incapable of understanding and appreciating the dangers and hazards incident to the service in which he is engaged, the presumption that he waived the negligence of the master, or the defective appliances, is not a question of law, but must be submitted to the jury as a question of fact, under proper instructions. See 8 Allen, 441; 102 Mass. 572; 113 Mass. 396; 3 Fost. & F., 622; 13 Allen, 433; 17 Wall. 543; 15 N.W. 107; 3 Wood, Railways, note 2, p. 1483; Thomps. on Negl., vol. 2, p. 977; 48 Ark. 333.

3. When one knowingly engages a minor in a dangerous employment without the father's consent, and the minor is injured in such employment, he is responsible to the father for any consequent loss of the son's services, and the contributory negligence of a minor cannot in a case like this be pleaded as a defense to an action by the father. 71 Ind. 451; 17 Ind. 323; 1 Ware, 75; 1 Ware, 91; 54 Tex. 556; 21 Cent. Law J., 57; 17 Wall. 553.

In view of these authorities, the court erred in its instructions in the third cause of action brought by the father.

Dodge & Johnson for the railway company.

1. The demurrer to the first count was properly sustained.

After citing and reviewing Gantt's Dig., sec., 4760; Rev. St.. ch. 4, sec. 59; Mansf. Dig., secs. 5223, 5225-6; Acts 1875, p. 133; Acts 1883, p. 75; Art. 5, sec. 32, Const. 1874; 41 Ark. 291; 41 Ark. 388, contend that the act of February 3, 1875, modified very materially sec. 5223, Mansf. Dig., if in fact it did not repeal or supersede it entirely; and that the act of 1883 (secs. 5225-6, Mansf. Dig.) absolutely repealed sec. 5223, and limited and circumscribed the recovery in all cases where death was the result of some wrongful act, to the pecuniary loss sustained by the widow and next of kin of the deceased. The act of 1883 when compared with sec. 5223, makes it plain that no recovery can be had except for the benefit of the widow and next of kin. 41 Ark. 386-9. Under our law, as it stands, the action survives, not for the benefit of the injured person's estate and his creditors, but solely and wholly for the widow and next of kin, and the recovery to be had is not for "pain or suffering" or "anguish of body or mind" of the injured, but is to be measured by the pecuniary loss sustained by the beneficiaries under the act. This was the limit; it could be no more and no less.

The first count fails to allege that the deceased died leaving any next of kin surviving or widow. This is fatal. Mansf. Dig., secs. 5225-6; 41 Ark. 387; 3 Wood, R'y Law, secs. 409, 410, 413 10 N.W. 411; 8 N. W Rep., 875; 37 Ark. 39; Cooley, Torts, 14, 16; 95 Pa. St., 158; 55 Ga. 143; 12 S.W. 128; 5 S.W. 875; 11 S.W. 1013; 11 S.W. 907; 23 Ind. 135; 34 Ark. 495.

2. An administrator, as the personal representative of a minor, has no legal capacity to sue for the death of a minor, for the reason that under sec. 3, act of February 3, 1875, that right devolved upon and survived alone to the father. Acts 1875, p. 133. This section has never been repealed, although not incorporated in Mansf. Dig. See Mansf. Dig., secs. 3538, 6490-1, 5225-6. Nor are secs. 3538-9 repealed by sec. 5226. 41 Ark. 149. "When the person killed or wounded be a minor, the father, if living, if not, then the mother; if neither be living, then the guardian" etc., may sue. 34 Ark. 493; Acts 1875, P. 133; 7 A. & E. R. R. Cas., 25 and note; 81 Ill. 590; 64 Mo. 112. The suit should have been by the father and not by the administrator.

The right of action survives to the father as next of kin, and a suit by him bars all other actions by an administrator or legal representative. Sheldon on Sub., sec. 230; 49 Tex. 31; 50 Ark. 1.

Using unblocked guard rail is not negligence, there being no statutory provision to the contrary. 35 Ark. 615; 28 A. & E. R. R. Cas., 488; 71 Ill. 418; 110 Ill. 340; 74 Ind. 447; 49 Mich. 466; 69 Mo. 320; 32 Mo. 411; 3 Hun, 338; 63 N.Y. 453; 42 Ala. 672; 118 Ill. 45.

The testimony must be more consistent with negligence than the absence of it. 62 Ind. 504; 70 Ind. 569-574; 44 Pa. St., 375; 118 Ill. 45.

The master is not an insurer, nor does he guarantee that the tools, machinery and instrumentalities will not prove defective or insufficient; he only undertakes to use reasonable care to prevent injury. 46 Ark. 567; 35 Ark. 602; 44 Ark. 529.

The knowledge of the employe of the character of the guard rail and his election to work with it in the condition it was constructed, bars a recovery; he assumes the risk as one of the usual hazards of employment. 147 Mass. 605; 135 Mass. 398; 138 Mass. 390; 139 Mass. 580; 140 Mass. 150; 71 Mo. 164; 5 A. & E. R. R. Cas., 610; 12 A. & E. R. R. Cas., 210; 13 N.W. 508; 78 N.C. 300.

The deceased was alone responsible for his injuries, by his carelessness in attempting to uncouple the cars in the mode and manner he did. 67 Mo. 275; 50 Wis. 66. There must be fault on the part of the master and freedom from contributory fault on part of the servant, and the fault must be traceable directly to the master. If it is uncertain who was at fault, no recovery can be had. 90 Mass. 575; 46 Ark. 567; 41 Ark. 393; 22 Ind. 29; 20 Mich. 105; 32 Iowa 357; 50 Mo. 302; 67 Mo. 239; 51 Ark. 476; 4 Oregon, 52; 48 Ark. 346.

3. The defendant was under no legal or moral responsibility to plaintiff as father of deceased, a minor, because it employed him without the consent of the parent. 3 Pick. 201; Wood on Mast. & S., p. 15, etc., and notes; 15 Gray, 82; 54 Mo. 246; Thomps on Negl., vol. 2, p. 977; 1...