El Dorado & Bastrop Railroad Company v. Whatley

Decision Date09 November 1908
Citation114 S.W. 234,88 Ark. 20
PartiesEL DORADO & BASTROP RAILROAD COMPANY v. WHATLEY
CourtArkansas 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:

"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 resulting from said injuries; and they may find for the plaintiff under 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 employee 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 employees 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 Arkansas, to another part thereof, in the performance of said duty, and that it was permissible by its superior officers and not unusual for employees of defendant in performing such services to be thus transferred from one part of its railroad yards to another, with the knowledge of their superior officers; and if they further find from the evidence that while being so transferred, the deceased was thrown from the pilot in front of the engine, and was run over by said engine, bruised, mashed and mangled, and that from said injuries he suffered great pain of body and anguish of mind for the space of about two days, and died, and that said injuries, suffering, pain and death of the deceased were the direct results of the carelessness and negligence of the servants and agents of the defendant in not keeping said railroad track in a reasonably safe condition, then they will find for the plaintiff such damages as they may believe from the evidence he is entitled to recover under any one or all three counts sued on."

Appellant asked but the court refused the following:

"1. The court instructs the jury to find for the defendant."

"7. The court instructs the jury that one who is injured by the negligence of another cannot recover any compensation for his injury if he by his own negligence and wilful wrong contributed to produce the injury of which he complains, so that but for his concurring and co-operating fault the injury would not have happened to him; and in this case if the jury believe from the evidence that the deceased, David Rufus, had been warned and was informed that it was against the rules and regulations of the company to ride on the front of the engine, and that in disregard of this warning he got up on the engine in front, on what is known as the pilot, slipped and was run over and injured, and that he would not have been injured had it not been for the position he was in, then your verdict should be for the defendant."

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...

To continue reading

Request your trial
33 cases
  • St. Louis-San Francisco Railway Co. v. Barron
    • United States
    • Arkansas Supreme Court
    • December 15, 1924
    ... ... 582 166 Ark. 641 ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BARRON No. 48Supreme Court of ArkansasDecember 15, ... He was an ... experienced railroad man, and it cannot be said as a matter ... of law that it ... ...
  • Rogers v. State
    • United States
    • Arkansas Supreme Court
    • October 28, 1918
  • Wortz v. Fort Smith Biscuit Co.
    • United States
    • Arkansas Supreme Court
    • October 21, 1912
    ... ... 691 105 Ark. 526 WORTZ v. FORT SMITH BISCUIT COMPANY Supreme Court of ArkansasOctober 21, 1912 ... ...
  • Harkrider v. Cox
    • United States
    • Arkansas Supreme Court
    • March 2, 1959
    ... ... 164] 84 Ark. 311, 105 S.W. 573; El Dorado & Bastrop R. Co. v. Whatley, 88 Ark. 20, 114 S.W. 234; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT