Fordyce v. Edwards

• Decision Date: 05 March 1898
• Parties: FORDYCE v. EDWARDS
• Court: Arkansas Supreme Court

44 S.W. 1034

65 Ark. 98

FORDYCE v. EDWARDS

Supreme Court of Arkansas

March 5, 1898

Appealed from Jefferson Circuit Court JOHN M. ELLIOTT, Judge.

Judgment reversed and cause remanded.

Sam H West and J. M. & J. G. Taylor, for appellants.

In instructing the jury as to what constitutes contributory negligence, it was the duty of the court to give to the jury the standard of conduct required of plaintiff. Instead of instructing the jury that plaintiff could recover if, while in the discharge of his duties, he was injured without "fault or negligence on his part," the court should have told them that plaintiff was held to the exercise of ordinary care and diligence. 42 S.W. 407; 65 N.W. 550; 60 Ark. 442. The instructions on the point of the degree of care demanded by the character of the defect are abstract misleading and erroneous. In undertaking the employment, the plaintiff bound himself to take notice of all obvious or patent defects in the machinery furnished him. 22 S.E. 367; 60 Ark. 442; 24 A. 487 ;Bailey's Master & Serv. 157, 158. Plaintiff is required to show that the injury did not arise from an obvious defect which he knew of or could have known of by the exercise of ordinary care, or which was a hazard incident to the business. 21 P. 660; 8 S. E. (Va.) 370; 38 Am. & Eng. R. Cas. pp. 31-35 note; Wood, Master & Serv. § 382; Wharton, Negl. § 206; 122 U.S. 189; Bailey, Liability of Master & Serv., pp. 170-175; 2 Rorer, Railroads, § 1212-1216; 3 Elliott, Railroads, § 1308. Negligence constituting the proximate cause of the injury is pre-requisite to liability of appellants. 3 Elliott on Railroads, §§ 1268, 1310. A servant assumes risks ordinarily incident to his service. Wood, Mast. & Serv. § 387; 3 Elliott, Railroads, § 1288. The sixth instruction given for plaintiff was erroneous, in that it told the jury that if the engine was standing in such place that plaintiff could not discover the defect by the exercise of ordinary care, defendant was liable. The liability of defendant rests on the negligent character of its acts and conduct towards plaintiff 28 S.W. 23; 3 Elliott, Railroads, §§ 1297, 1308. Where master and servant have the same beans of knowledge, ordinary risks of service are assumed by the servant. 3 Elliott, Railroads, § 1288, p. 2029; 18 N.W. 584. The alleged defect in the machinery was not pleaded in the complaint, and the court erred in admitting testimony on this point. 22 S.E. 871; 3 Elliott, Railroads, § 1309; Black, Proof & Pldg. in Acc. Cas. p. 59; 54 Ark. 304; 70 Iowa 594; 1 Black, Judgments, § 183.

N. T. White, H. King White and W. T. Wooldridge, for appellee.

If the defect complained of was not such a one as the plaintiff might have discovered by the exercise of ordinary care and diligence, he was entitled to recover. Whether such was the case, is a question for the jury. 60 Ark. 442. After discovering the defect, plaintiff did not lose his right of action by continuing on the locomotive. 60 Ark. 443; 57 Ark. 164. Instructions I and 4 given for appellee correctly declared the law of contributory negligence.

OPINION

HUGHES, J.

This is an appeal from a judgment for appellee in the sum of five thousand dollars against the appellants. The case was appealed once before, and was reversed and remanded for a new trial. The opinion is reported in 60 Ark. 428.

The appellee was a locomotive engineer in the employment of appellant, and was injured by the derailment of the engine caused by striking a horse. He alleged in his complaint that his injury was caused by the negligence of the appellants in furnishing him with a locomotive the pilot of which was raised so high above the track that the locomotive was dangerous to operate. This was held, on the first consideration here, to be a patent defect, to observe which the appellee was required by law to use ordinary care.

On the first trial, the circuit court, at the request of the appellee, gave the jury the following instruction numbered two (2): "The plaintiff had the right to presume that the engine furnished by the defendant was in good condition, and he was not required to inspect the same for defects; and if the jury find from the evidence that, during the course of the trip, he discovered that, owing to the use of an improper spring under the locomotive, the same had become more dangerous, then, by remaining in the performance of his duties, he did not assume the increased risk occasioned by such defect, unless the jury believe from the evidence that the increased risk was so hazardous that a reasonably prudent man, situated as the plaintiff was, would not have continued in the performance of his duties." This court held on the first appeal that the first part of this instruction was erroneous, in that it in effect told the jury that the plaintiff was not required to take notice of obvious defects; while the law required that he should have used his eyes, and have made such inspection as ordinary care requires of one whose duty it is to take notice of obvious defects. It is, of course, well settled that plaintiff was bound to use ordinary care to observe patent defects in machinery he was operating, and if he failed to do so, and was injured by an accident resulting from such defects, he cannot recover damages for his injury, for he assumed the risk. (See authorities cited in Fordyce v. Edwards, 60 Ark. 438, 30 S.W. 758.)

On the second trial of this cause, the circuit court gave this same instruction, numbered 2, with an amendment to make it read that the plaintiff was not required to inspect the engine for latent defects. This interpolation of the word "latent" before the word "defects" was...