El Dorado & Bastrop Railroad Company v. Whatley
Decision Date | 09 November 1908 |
Citation | 114 S.W. 234,88 Ark. 20 |
Parties | EL DORADO & BASTROP RAILROAD COMPANY v. WHATLEY |
Court | Arkansas Supreme Court |
Appeal from Union Circuit Court; George W. Hays, Judge; reversed.
STATEMENT BY THE COURT.
David Rufus, a youth about sixteen years old, was in the employ of appellant as brakeman about its yards in the town of El Dorado, Arkansas. 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 and 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:
Appellant asked but the court refused the following:
The court modified prayer number 7 by adding at its conclusion the words: "provided you find that the defendant by using ordinary care could have prevented the injury."
The court on its own motion gave the following instruction over appellant's objection: "If you find from the evidence in this case than the plaintiff used ordinary care, you will find for the plaintiff."
The verdict and judgment were for $ 500. This appeal has been duly prosecuted.
Judgment reversed and cause remanded.
T. M. Mehaffy and J. E. Williams, for appellant.
1. It is error to instruct a jury on undisputed evidence unless peremptorily. 72 Ark. 440; 69 Ark. 489; 67 Ark. 147. It is also error to submit to a jury issues upon which...
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