Fletcher v. Freeman-Smith Lumber Co.

• Decision Date: 13 March 1911
• Citation: 135 S.W. 827,98 Ark. 202
• Parties: FLETCHER v. FREEMAN-SMITH LUMBER COMPANY
• Court: Arkansas Supreme Court

135 S.W. 827

98 Ark. 202

FLETCHER v. FREEMAN-SMITH LUMBER COMPANY

Supreme Court of Arkansas

March 13, 1911

Appeal from Calhoun Circuit Court; George W. Hays, Judge; reversed.

Judgment reversed and cause remanded.

J. S McKnight and Carmichael, Brooks & Powers, for appellant.

1. The court erred in excluding the testimony of the machinist Farnsworth. The rule admitting the declarations of an agent as binding upon the principal should govern as to this testimony. 1 Greenleaf on Evidence (15 ed.) 173, § 114. See also 100 S.W. 162; 102 S.W. 755; 67 Ark. 306.

2. The court erred in giving instruction numbered 1, wherein it is stated not only that negligence could not be presumed against the defendant, but also in effect that the burden was upon the plaintiff to prove that he was injured as a direct result of some negligent act of defendant alleged in the complaint etc. Proof of injury by the operation of a train makes a prima facie case, and the burden is then upon the defendant to prove that it was not negligent. Kirby's Dig. § 6773; 88 Ark. 204; 87 Ark. 581; Id. 308; 83 Ark. 217.

3. Instruction No. 4, given at appellee's request, is not the law. It is a clear invasion of the right of the jury to say whether or not, under the evidence, the appellant acted as a reasonably prudent person should act under the circumstances, and whether or not his method of proceeding contributed to his injury.

4. The court erred in amending the fourth instruction requested by appellant by striking out the clause relative to the negligent building of appellee's railroad. There is no proof that appellant knew of such negligent construction or that he appreciated the danger thereof. And it was also error in the court to refuse to charge the jury with reference to appellee's duty to keep a constant lookout for the safety of others while performing the duties of their employment. Kirby's Dig. § 6607; 88 Ark. 204; 83 Ark. 68; 80 Ark. 528.

Gaughan & Sifford, for appellee.

1. The testimony of the witness, Farnsworth, was properly excluded. Slow-working or defective brakes on the engine had nothing to do with the accident. Moreover, his information was derived from Christian's report, who was present and testified.

2. There is no presumption of negligence against appellee arising from the fact of injury to the appellant, and the jury were properly instructed that before he could recover he must allege and prove that he was injured as a direct result of some negligent act on the part of the defendant. 79 Ark. 81; 90 Ark. 331.

OPINION

MCCULLOCH, C. J.

The plaintiff was employed by defendant to assist in the operation of a log train by which defendant's logs were transported. He was a brakeman, and it was a part of his duties to couple cars. While performing that particular service, he received personal injuries, alleged to have been caused by negligence of other employees of defendant, and he sues to recover damages. The injury occurred on a spur track in the woods near a log camp. The engine was backing in on the spur to take out some log cars. Plaintiff was on the engine, and when it got in about twenty-five yards of the car to be coupled he got down from the engine and ran ahead to make the coupling. He testified that when he reached the car the engine was about eight feet distant, coming at the rate of about six miles per hour; that he went in between the engine and the car and raised the pin preparatory to making the coupling, but discovered that the car was too high for the reach of the engine; that he did not have time to change the reach or to get out, and he signalled the engineer to stop, but that the engineer failed to stop and rail the engine against him, mashing him between the tender and the ends of the logs on the car. He testified further that if the engineer had been in his proper place on the engine he could have seen the signal in time to stop.

It is alleged in the complaint that the brake of the engine was so defective that when backing down a steep grade it would not hold, and that the injury was caused either on account of the negligence of defendant in allowing the engine to get out of repair in that particular, or on account of the negligence of the engineer in failing to stop the engine. It is also alleged in the complaint that defendant was guilty of negligence in building the spur on the side of a hill where the grade was so steep.

The defendant in its answer denied the charges of negligence, and pleaded contributory negligence of plaintiff. The trial before jury resulted in a verdict in defendant's favor, and the plaintiff appealed.

The court gave the following instruction over plaintiff's objection:

"4. The jury are instructed that if you believe from the evidence that the engineer backed the engine down to the coupling under control, and that there were two ways in which the plaintiff could have acted in making the coupling, one to stand on the outside and signal the engineer to stop or slow down, and that this was the safer way, and that the other way...