Francis v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 11 March 1912
• Citation: 145 S.W. 534,102 Ark. 616
• Parties: FRANCIS v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

145 S.W. 534

102 Ark. 616

FRANCIS v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

March 11, 1912

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed.

Affirmed.

Hart Mahaffey & Thomas and L. A. Byrne, for appellant.

1. The record does not disclose upon what grounds the court took the case away from the jury. If it did so on the grounds that appellant assumed the risk, then its action was in the face of the statute. "Safety Appliance Act," §§ 2, 8; 86 Ark. 244.

2. It could not legally take the case away from the jury on the grounds of contributory negligence because that is a question solely for the jury unless the undisputed facts are such as constitute contributory negligence. 82 Ark. 11; 87 Ark. 443; 90 Ark. 453; 91 Ark. 388; 93 Ark. 15; See also 220 U.S. 580; 92 Ark. 554; 205 U.S. 1; 129 F. 522; 165 F. 869; 174 F. 399; 135 F. 122; 170 F. 1014; 53 A. 90.

3. On the question of the release, this case is controlled by Railway v. Hambright, 87 Ark. 614.

H. S Powell, E. B. Kinsworthy and W. E. Hemingway, for appellee.

1. If there was any failure to maintain the couplers so as to make automatic couplings, such failure was not the cause of the injury. It resulted from an unnecessary attempt to make a coupling by use of the foot, a thing which appellee had no reason to expect, and the resultant injury was not a direct or proximate consequence of the condition of the coupler. 90 Ark. 210.

2. It is conceded that, if the case comes within the Safety Appliance Act, the rule of assumed risk does not apply; but there is no proof that the car was being used in interstate commerce at the time of the injury, and the case is not controlled by that act. Hence the rule of assumed risk does apply.

3. The Safety Appliance Act does not refer to contributory negligence, and has no effect upon the plea of contributory negligence as a defense. 96 F. 298; 129 F. 347, 348; 220 U.S 590, 596, 597.

Plaintiff having himself testified that it would have been less dangerous to have used his hand instead of his foot in attempting to make the coupling, and, it appearing that other methods of making the coupling without danger could have been employed, the defense of contributory negligence was clearly made out in this case. 108 F. 474; 128 F. 529; 144 F. 668; 161 F. 719.

4. Appellant's settlement and release of his claim, if he had any, precludes recovery in this action. There are so many points of difference between the facts in the Hambright case, 87 Ark. 614, and in this, that that case can not be held as controlling here.

OPINION

MCCULLOCH, C. J.

Appellant sued the railroad company to recover damages on account of injuries received while in the latter's service, and he appealed from an adverse judgment, the trial court having given a peremptory instruction to the jury to return a verdict in favor of the company.

Appellant was working in the railroad yards at Texarkana as switchman, and was injured while attempting to couple a car to the switch engine. The engine was equipped with an automatic coupler, which was found to be out of repair; and when appellant called his foreman's attention to this condition, he was directed to remove the knuckles from the coupler of a box car, and place same in the engine coupler. The engine was taken over to a sidetrack, where the box car was, and appellant, assisted by the foreman, took the knuckles out of the coupler on the box car and placed them in the coupler of the engine. The foreman then said: "All right; go ahead." He was directed to couple certain cars, and when he attempted to do so the knuckles were still found to be out of order, so that the coupling could not be made automatically by the impact of the cars coming together. The first and second attempt failed, and in the third attempt appellant tried, with his left foot, to push the drawhead over so that the coupler would connect, but the drawhead on the engine and the car had too much play, and by reason thereof caught his foot and crushed it. The first joint of his big toe was crushed so that it had to be amputated, and all the other toes on that foot were mashed off. He was given attention that night by the local surgeon, and the next day sent to St. Louis and placed in the hospital operated for the benefit of employees of the company. This was on July 4, 1907, and he remained in the hospital until November 2 of the same year. On that day he applied to Doctor Vasterling, the surgeon in charge, for a discharge or "clearance," assigning as a reason that his wife was about to be confined, and that he could secure proper attention at home with his family. Doctor Vasterling objected to his discharge, but finally acceded to appellant's wishes, and gave him a letter of introduction to the claim agent of the company at St. Louis, and also gave him the following letter (omitting address), addressed to the claim agent, as his discharge:

"J E. Francis, switchman, the bearer hereof, has this day been discharged from the St. Louis Hospital upon request, where he has been under treatment since July 4 for injuries inflicted at Texarkana on July 2, as follows: Loss of all toes left foot amputation through first phalanx great toe and at metatarso phalangeal articulations other toes, extensive loss of skin structure, dorsal and planter surface of same foot, which we consider permanent. As he is now convalescent, we send him to you for such consideration as his case seems to merit. Judging from his present condition, it will probably be before he is able to resume his old employment. Since he has been under our care, his conduct has been O. K. Please furnish him with transportation from St. Louis to Texarkana.

"Remarks Francis states that his wife will be confined this...