El Dorado & B. R. Co. v. Whatley

Decision Date09 November 1908
Citation114 S.W. 234
PartiesEL DORADO & B. R. CO. v. WHATLEY.
CourtArkansas Supreme Court

Appeal from Circuit Court, Union County; G. W. Hays, Judge.

Action by J. M. Whatley, administrator of David Rufus, deceased, against the El Dorado & Bastrop Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

David Rufus, a youth about 16 years old, was in the employ of appellant as brakeman about its yards in the town of El Dorado, Ark. On the morning of his fatal injury, he was riding on the pilot of the engine. The engine and tender were going north on the side track, and young Rufus was going to make a coupling on the pilot. He was standing on a board or step on the right-hand side of the pilot. There was "a piece on the side of the pilot put there for people to stand on who go there to fix the knuckle" of the coupler. The piece was put there to keep the feet of those who go there to open the knuckle from slipping off. There was a place on the engine for the brakeman to ride who opened the knuckle so they did not have to get on the pilot. He was opening a knuckle, when the engine ran over one rail that was higher than the other at the joint between them, making a spring that caused the pilot to tilt and throw him off between the rails; his right leg being across the rail. The engine and tender passed over him, crushing his leg, which was soon after amputated. He was conscious after his injury and suffered extremely from Saturday morning until Monday morning, when he died. Appellee, as the administrator, sued for the benefit of the estate, for the benefit of his father as next of kin for the loss of services to the father. The negligence alleged was the failure of appellant to give proper warning of the dangers to which Rufus was exposed, and the negligent construction and maintenance of its track, in that the rails were not properly joined together, and consequently one was lower than the other, causing the rebound of the front part of the engine and tilt of the pilot, which threw young Rufus to the track, etc. All the material allegations of the complaint were denied, and the defense of contributory negligence was set up. There was evidence sufficient to sustain the verdict on the issue of the negligence of appellant in maintaining its track in a defective condition. On the issue of contributory negligence, the evidence showed that it was against the rules of the company to ride on the pilot of the engine, that it was dangerous to do so, and the engineer so informed Rufus. The conductor, whose duty it was to warn Rufus of the danger of riding on the pilot, said that he "told every new man to keep off the pilot, and the head negro brakeman looked after that order too." The brakeman testified that he told Rufus "a good many times" before, and told him "that same morning," that "it was against the rules of the company" to ride on the pilot, and "if he was caught it would be at his own risk." This was all the testimony on the subject of the warning that was given Rufus. There was evidence to warrant the conclusion that "it was customary for brakemen to board the pilot and be transferred from one part of the yard to the other," and that the conductor had knowledge of this custom.

Among many instructions, the court gave the following prayers for instructions at the instance of appellee:

"(5) The jury are instructed that, if they believe from the evidence that David Rufus, the deceased, was a minor, and was employed by the defendant upon one of its trains to perform dangerous and hazardous services, and that he was injured while in the discharge of the duties of his employment, a recovery cannot be defeated on the ground of contributory negligence, unless they further find from the evidence that the deceased was warned and instructed by the defendant against the dangers incident to the duties of his employment, and, after being so warned, the deceased failed in the exercise of ordinary care and prudence."

"(7) The jury are instructed that if they believe from the evidence that the deceased was in the employment of the defendant upon one of its trains to perform dangerous and hazardous services, and that he was, at the time, a minor, and on account of his youth and inexperience he did not know or appreciate the dangers incident to the services he was so employed to do, and that the defendant failed to warn him of such dangers, or to instruct him how to avoid it so far as it could be avoided, before exposing him to such danger, and that deceased was injured while in the discharge of the duties of his employment and suffered great pain of body and mental anguish, and came to his death on account of the defendant's failure to so warn and instruct him, the defendant is liable for any damages the jury may find, from the evidence, directly resulted from said injuries, and they may find for the plaintiff under any one or all three counts laid in the complaint, as they may believe from the evidence he is entitled to recover."

"(9) The jury are instructed that, if they find from the evidence that the deceased was an employé of the defendant, he was not bound by the rule of said defendant, which they believe from the evidence was not brought to his attention, or was habitually violated with the knowledge of his superior officers without any effort on their part to enforce it. And if the jury believe from the evidence that the defendant had a rule that employés should not board the pilot of engine in performing the services of their employment, and that said rule was not brought to the attention of the deceased, or that it was habitually violated with the knowledge of his superior officers without any effort on their part to enforce it, and which, they believe from the evidence, tended to mislead deceased in the violation of such rules, then they will find that there was no such breach of duty on the part of the deceased in boarding the said pilot, and that such act on his part does not amount to such contributory negligence as would excuse the defendant from such liabilities for injuries caused by defects in railroad tracks which it was its duty to discover and repair, and which might have been discovered and repaired by the exercise of ordinary care and diligence on the part of the defendant.

"(10) The jury are instructed that if they believe from the evidence in this case that the deceased was, on the 6th day of May, 1905, in the employment of the defendant on one of its trains, and was a minor, and that the coupling and uncoupling of its cars was a part of the duties of his employment, and that the deceased took the pilot of the engine of the defendant to be transferred from one part of the railroad yards, at its depot in El Dorado, Union county, Ark., to another part thereof, in the performance of said duty, and that it was permissible by its superior officers and not unusual...

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