fordyce v. Lowman

• Decision Date: 07 January 1893
• Citation: 20 S.W. 1090,57 Ark. 160
• Parties: FORDYCE v. LOWMAN
• Court: Arkansas Supreme Court

20 S.W. 1090

57 Ark. 160

FORDYCE v. LOWMAN

Supreme Court of Arkansas

January 7, 1893

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

Alien C. Lowman, as administratrix of the estate of her husband Samuel M. Lowman, brought suit against S.W. Fordyce and A. H Swanson, receivers of the St. Louis, Arkansas & Texas Railway Company, to recover damages sustained by her by reason of the death of her intestate. The case is stated in the opinion.

Judgment reversed and cause remanded.

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

1. The instructions given for plaintiff were ambiguous and misleading--they do not declare the law. Having shipped on this particular train in which it was customary to push cars in the absence of proof to the contrary, he assumed the risks of the employment. 15 A. 833; 50 Vt. 350; Black on Proof and Pl. Ac. Cases, pp. 50, 167; 25 A. & E. R. Cas. 507. A corporation has a right to carry on a business which is dangerous, either in itself or in the manner of conducting it, if it is not unlawful and interferes with no rights of others, and it is not liable to one of its servants, who is capable of contracting for himself and knows the danger attending the business in the manner in which it is conducted, for an injury resulting therefrom. 3 M. & W. 1; 9 Exch. 223; 16 Q. B. 326; 102 Mass. 572, 585; 3 Dill. 319; 113 Mass. 398; 102 id. 574. The law of this case is fully declared in 19 S.W. 576, 601, and the instructions given in this case were there held erroneous.

2. The verdict is excessive. 11 S.W. 694.

N. T. White and White & Woolridge for appellee.

No question of fellow servant arises in this case. The real issue is, was the increased risk, one not incident to his employment, assumed by decedent, and, if so, did he assume the increased risk by going upon the flat cars? The system adopted was exceedingly dangerous, hazardous and, you might say, almost unknown among railroad companies. Even if Lowman was guilty of contributory negligence in going upon the flat cars, this did not relieve appellants from the responsibility in exercising due care and diligence in providing a firm roadbed and a safe track and a reasonably safe place and surroundings for Lowman to perform his work, and if appellants could have, by exercising due care and diligence, avoided the accident, they are liable. 38 A. & E. R. Cas. 32; id. 87; id. 119; id. 209; 48 Ark. 333; 46 id. 388; 54 id. 289.

OPINION

HUGHES, J.

This action was brought to recover damages alleged to have been occasioned by the death of Samuel Lowman, the plaintiff's intestate, who was killed by a wreck of the train on which he was acting as head brakeman at the time in the employment of the appellants, who, as receivers, had charge of the St. Louis, Arkansas & Texas Railway.

The accident occurred on the first trip made by the deceased over the road as brakeman. The train was a mixed passenger, freight and construction train, and, at the time of the wreck, was pushing ahead of the engine some flat cars used as gravel cars, which had been unloaded and were being pushed back to a gravel pit to be loaded.

It appears from the evidence in the case that it had been the custom upon the road to thus push these flat cars ahead of the train, because there was no switch where the cars were unloaded; that the place of the brakeman was on the second one of these flat cars from the front, ahead of the engine, where the deceased was, at the time of the wreck, in the discharge of his duty as brakeman, which position he voluntarily assumed, after he had coupled the flat cars to the engine in front, without any complaint on his part. That this position was more dangerous than a position in the rear of the engine; that he was not commanded to go upon these cars, but was expected to do so by the conductor of the train, and would have been ordered to do so, had he not gone upon them of his own accord.

Whether there was evidence that the deceased knew of this custom to push these flat cars ahead of the train, before starting upon this trip, was for the jury. As to whether this was a proper thing to do by the railroad company, or, as some of the witnesses expressed it, was proper "railroading," there was conflict in the evidence.

After five instructions had been given for the plaintiff, to which the defendants excepted, and five had also been given for the defendants, and those asked for by the defendants had been modified by the court, and given as modified, over the defendants' objection, the jury returned a verdict for the plaintiff in the sum of fifteen thousand dollars; whereupon the defendants moved to set aside the verdict and for a new trial. Their motion was denied, and they have appealed to this court.

We do not propose to discuss the instructions, but deem it sufficient to declare the law applicable to the case, and to say of the first and third instructions given at the instance of the defendants that they are abstract...