Houston, C. A. & N. Ry. Co. v. Bolling

• Decision Date: 14 July 1894
• Citation: 27 S.W. 492
• Parties: HOUSTON, C. A. & N. RY. CO. v. BOLLING.
• Court: Arkansas Supreme Court

27 S.W. 492

HOUSTON, C. A. & N. RY. CO. v. BOLLING.

Supreme Court of Arkansas.

July 14, 1894.

Appeal from circuit court, Drew county; Carroll D. Wood, Judge.

Action by Falls Bolling against the Houston, Central Arkansas & Northern Railway Company for injuries received while riding on a hand car. Judgment for plaintiff, and defendant appeals. Reversed.

The appellee, a boy about four years old, while riding on a hand car of appellant, had his hand crushed in the cogs by which it was operated, and for the injury recovered damages in this action in the sum of $5,000, to reverse the judgment for which the appeal in this case was taken. The facts in the case are substantially as follows: Parkdale is the center of a section of defendant's railway in Ashley county, Ark. The section was about six miles long, and Parkdale was situated about the center. At Parkdale was located the railway company's section house, at which the laborers and foreman resided. On March 29, 1892, one Bolling was foreman of that section (No. 6), and had charge of all the work thereon. He lived at the section house at Parkdale, with his wife and child, Falls Bolling, who was at that time about four years old, and who is the real plaintiff in this suit. On March 29, 1892, Section Foreman Bolling was very ill, and one Mike O'Connor, one of the regular section hands, was presumably acting as temporary foreman. The duties of these section hands were to keep the track of their section in repair, and do all things necessary to that end. Their working hours were from 7 o'clock a. m. to 6 o'clock p. m. each day, and, except in an emergency, the foreman and laborers were not required to be on the track outside of these hours. In order to enable this section crew to do its work, all the tools necessary were furnished them by the railway company, and among these tools was a hand car. This hand car was furnished them for the express purpose of transporting the section laborers, with the tools, implements, and materials, to and from the several places on the line of road within the section, wherever needed, and for no other purpose. Indeed, the rules and regulations of the defendant railway company forbade the section foreman or any one of the section men allowing any one to ride on the hand car except the laborers on the section. They were forbidden to use the hand car except in their work, and the proof shows that the hand car was never intended for, nor was it ever used for, the transportation of passengers. On the contrary, the use of the hand car was, for this purpose, positively and affirmatively prohibited. The section foreman and his men had absolutely nothing to do with the transportation of passengers. On the contrary, they were forbidden to do such work, or to carry passengers on the hand car or in any manner. The proof was clear and undisputed that Section Foreman Bolling had knowledge of these rules, and that he had repeatedly imparted his knowledge to O'Connor and his crew. On March 29, 1892, the section hands came in early from work, — between 5 and 6 o'clock, — at the express orders of Bolling, for the purpose of taking two ladies on the hand car up to Mr. Kinnebrew's residence, which was about a quarter of a mile beyond the end of the section, and off of section 6. Kinnebrew was very ill. His wife desired Mrs. Meyer to come and sit up with her. Mrs. Meyer had asked Mrs. Maxwell to go with her, and Mrs. Maxwell had consented. So, in order to get to Kinnebrew's, these ladies asked either Mr. Bolling or his wife or both to let the section men carry them up to that point on the hand car. Mr. Bolling consented, and ordered the men to come in early from work, and carry the ladies to Kinnebrew's. One of the section men testified: "We were employed on that section (No. 6), and it was the duty of the hands on that section to see every part of the road on that section every day. When we got ready to start over the north end of the section, on said March 29, 1892, Falls Bolling, a child about 4 years old, began to cry, and wanted to go with us," etc. At 5:20 p. m. the section men quit work, and came into the section house. On their arrival, Mrs. Bolling, who knew the purpose for which they had come in so early, sent word to the ladies that the men had come, and would take them at once. In the meantime Falls Bolling, the child of Mrs. and Mr. Bolling, and plaintiff in this case, was standing near the hand car, crying to take a ride on it. Mike O'Connor — who, the testimony shows, was much attached to the child, and made a pet of it — asked its mother to let it go with them on the hand car, and Mrs. Bolling consented, saying, "Take good care of my boy, and bring him back safe." To this O'Connor replied, apparently in a joking manner, "Yes, we will bring him back safe, or we will bring him back a corpse." Upon this reply being made, Mrs. Bolling then told the men "to leave her boy alone, and not to take him." The men made no reply to this, but simply laughed. As to whether or not this conversation actually took place the proof was contradictory. After this conversation, Mrs. Meyer and Mrs. Maxwell (or about that time) arrived, and got upon the hand car, the plaintiff being taken charge of by Mrs. Maxwell, who held him in her arms while riding on the hand car up to Mr. Kinnebrew's. After Mrs. Maxwell, Mrs. Meyer, the plaintiff, Falls Bolling, and the crew had got themselves upon the hand car, they then proceeded up the road a distance of about 3½ miles, to Kinnebrew's, and on arriving...