Fordyce v. Briney

• Decision Date: 25 November 1893
• Parties: FORDYCE v. BRINEY
• Court: Arkansas Supreme Court

24 S.W. 250

58 Ark. 206

FORDYCE v. BRINEY

Supreme Court of Arkansas

November 25, 1893

Appeal from Craighead Circuit Court, Jonesboro District, JAMES E RIDDICK, Judge.

STATEMENT BY THE COURT.

This action against the receivers of the St. Louis, Arkansas & Texas Railway Company, was to recover for a personal injury received by the plaintiff while he was repairing a car. The receivers appeal from a judgment rendered in the plaintiff's favor on the verdict of a jury.

The court's fifth, sixth, seventh and eighth instructions were as follows:

5. While plaintiff must be held to have assumed all risks ordinarily incident to his employment of car-repairer, yet it was the duty of the defendants, or their employees, to use ordinary care in providing him a safe place in which to perform such work. If it was the duty of the plaintiff to go under cars for the purpose of repairing them while on the repair track, it was also the duty of the defendants to use ordinary precaution to prevent his injury by adopting such rules and regulations as would to a person of ordinary prudence seem sufficient to insure his safety while he was engaged at such work; and if they failed to exercise ordinary care in this respect, but allowed their employees to move engines and cars upon said repair track without any regulation which could reasonably be supposed sufficient to protect those engaged in repairing cars on said track, and injury re-suited to them from such negligence on the part of the defendant, then they will be liable, although the negligence of a fellow servant may have also contributed to such injury, unless plaintiff was also guilty of negligence contributing to the injury.

6. If the car-inspector, having the control of the plaintiff and the authority to direct him in his work, ordered him to go under a caboose attached to a train of cars on the repair track, and, while obeying such orders and exercising ordinary care on his part, the plaintiff was injured by the negligence of the car-inspector in failing to give any notice to the engineer or person in charge of the train, or if he was injured through the failure of the defendant to exercise ordinary care in providing any regulation sufficient for the protection of those working on the repair track, then the defendants are liable, and the jury should find for the plaintiff, unless he, himself, was guilty of negligence contributing to such injury.

7. While it is the duty of the railway company to make and promulgate necessary rules and regulations for the safety of its employees, it is also the duty of the employee to acquaint himself with such rules and regulations and to obey them, and, in case of any injury resulting to such employee from his failure to obey such rules and regulations, he will not be permitted to excuse himself by saying that he did not know the rules, unless it appears that he had no sufficient means of acquiring such information, and that his failure to know them was not from any want of care on his part; and in this case if you find that a regulation or rule of the defendants required employees working under cars to hang out a danger signal so that it might be observed by the train men, and that plaintiff failed to obey this regulation, then he cannot recover, and the finding must be for the defendants unless it is shown that the plaintiff had no notice of such rule, and that his ignorance in this regard was not occasioned by any want of care or attention on his part. ^[*]

8. If the caboose, under which the plaintiff was working at the time of the injury, was attached to a train of cars at the time he began his work, then whether the plaintiff was guilty of negligence in going under said caboose to work is a question for the jury, depending upon the circumstances in proof. If the position taken by the plaintiff was dangerous and such that a man of ordinary prudence would not have taken, and if the connection of the train and caboose or other circumstances were sufficient to warn a person of ordinary prudence of his danger, then plaintiff would be guilty of contributory negligence in going under said caboose, and he cannot recover.

The sixth instruction requested by the defendant and given by the court was as follows:

6. If the jury find from the evidence that the railway company or the defendants have established and promulgated a rule for the protection of car-repairers, requiring them, before going under a car to make repairs, to hang out a danger signal, and that the plaintiff went under the car where he received the injury without obeying such rules or regulations, then you are instructed that the plaintiff was guilty of negligence and if you further find that, had the plaintiff obeyed such rules or regulations, the injury might not or ought not to have happened, you will find for the defendants.

The following was the defendants' tenth instruction, as requested.

10. You are instructed that, although you may find from the evidence that plaintiff went under the car by the direction of C. A Higgi, yet if you find that plaintiff failed to hang out a danger signal, and then, while he was under the caboose, the engineer or fireman coupled on to the train to which the caboose was attached, and commenced to move it, and the plaintiff was thereby injured, he cannot recover, as the failure to hang out the danger signal was an act of negligence on his part.

As modified by the court and given to the jury the defendants' tenth instruction was as follows:

10. You are instructed that, although you may find from the evidence that plaintiff went under the car by the direction of C. A Higgi, yet, if you find that the regulations of said defendants required employees to hang out a danger signal while at such work, and that the plaintiff failed to hang out such signal, and that, while he was under the caboose, the engineer or fireman coupled on the train to which the caboose was attached, and commenced to move it, and the plaintiff was thereby injured, he cannot recover, as the failure to hang out the danger signal was an act of negligence on his part.

The other facts are sufficiently stated in the opinion.

Judgment reversed and cause remanded.

J. C. Hawthorne and Sam H. West for appellants.

1. The court erred in giving the fourth instruction. The car-inspector was not a vice-principal unless he had power to employ and discharge other servants. He was merely a sub-manager or foreman of higher grade, and was fellow servant with appellee. 129 Mass. 268; 19 Am. St. Rep. 180; 55 N.Y. 579; 17 N.Y. 153; 108 Ill. 288; 64 N.Y. 5; Wharton, Neg. 229; 76 Me. 143.

2. The fifth is abstract and misleading. Beach, Cont. Neg. sec. 141.

3. The injury was brought about by plaintiff's own negligence. 41 Ark. 532; 51 id. 467; 44 id. 293.

4th. The sixth is objectionable because it assumes that the car-inspector was not a fellow servant, and that his failure to give notice to the engineer was negligence. 19 Am. St. 180; 62 N.Y. 99.

5. The first, second and third asked for defendant should have been given. A servant assumes all risk ordinarily incident to his employment, including the negligence of fellow servants. A car-inspector is a fellow servant. 4 Met. 49; 125 Mass. 79; 20 Rep. 301; 135 Mass. 209.

6. It is the duty of a railroad company to make and promulgate rules, etc., for the safety of employees, but it is also the duty of an employee to acquaint himself with and obey them. The question as to whether plaintiff's failure to place a danger signal out was the proximate cause of the injury should have been submitted to the jury. 33 Oh. St. 227; 63 Tex. 549; 70 id. 226; 60 N.Y. 326; 58 N.Y. 411.

7. It was error to refuse the thirteenth.58 Mich. 584.

L. L. Mack for appellee.

1. Higgi was the boss car-repairer, a vice-princi-pal acting for the company; had charge of the movements of the cars being repaired, and control of the hands engaged therein. Plaintiff was under his orders at the time. The power to employ and discharge hands is not necessary to constitute a vice-principal. The true test is--was Higgi employed to discharge any of the duties of the master. Whit. Smith, Neg. pp. 148, 149; 7 Am. & E. Enc. Law, p. 844, and note; 44 Ark. 524.

2. The proof shows gross negligence committed in the presence of the company's boss car-repairer. The employer is bound to take reasonable care to furnish the employee with adequate material and resources for the work; to see that a sufficient number are employed, where it is dangerous to leave the work to a few only; to make rules for safe working; to inform him of extraordinary risks, etc. They are part of the contract of hiring. Whit. Smith, Neg. p. 126; ib. 132-3; 44 Ark. 524; 51 id. 467.

3. The plaintiff may recover, notwithstanding his contributory negligence, if the defendant had knowledge in time to prevent the injury by the use of proper care. Whit. Smith, Neg. pp. 374-5; 4 A. & E. Enc. Law, p. 40; 48 Ark. 106.

OPINION

MANSFIELD, J., (after stating the facts.)

At the time of the injury for which the plaintiff recovered, he and Charles Hickey were in the service of the railway company at its round-house in Jonesboro, the former as car-repairer and the latter as car-inspector. C. Bushmeyer was foreman of the round-house, and appears to have had charge of the business of the company at that place. He alone had power to employ and discharge the men who worked for the company there, and Hickey and the plaintiff both worked under his supervision and control.

The position of Hickey, so far as the record discloses it, may be stated in a few words: It was his duty to inspect the cars and to call the attention of the car-repairers...