Kansas City, fort Scott & Memphis Railway Co. v. Becker

• Decision Date: 20 February 1897
• Citation: 39 S.W. 358,63 Ark. 477
• Parties: KANSAS CITY, FORT SCOTT & MEMPHIS RAILWAY COMPANY v. BECKER
• Court: Arkansas Supreme Court

39 S.W. 358

63 Ark. 477

KANSAS CITY, FORT SCOTT & MEMPHIS RAILWAY COMPANY v. BECKER

Supreme Court of Arkansas

February 20, 1897

Appeal from Craighead Circuit Court, Jonesboro District, FELIX G TAYLOR, Judge.

Judgment reversed and cause remanded.

Wallace Bratt, I. P. Dana and Olden & Orr for appellant.

Appellee knew of the defect. He took the risk, and, on the evidence the court should have directed the jury to return a verdict for defendant. 57 Ark. 461. See Shearman & Redf. Neg. (4 Ed.), sec. 11; 46 Ark. 555; 21 S.W. 648; 23 id. 643; 59 Tex 22; 33 S.W. 722; 30 id. 759; 22 id. 162; 150 Mass. 423; 23 N.E. 227; 46 Ark. 567; 26 S.W. 592; 33 Kas. 660. The danger was obvious to the employee. 33 Kas. 660; Wood, Master & S. sec. 382; 1 Shearman & Redf. Neg. (4 Ed.), sec. 222; 2 Thompson, Neg. p. 1053, sec. 48; Pierce, Railroad, 373, 382; 61 Ia. 714, 715; 19 S.E. 756; Ray, Neg. Imposed Duties, 133; Bailey, Master's Neg. p. 503; 119 Pa.St. 70; 103 Mo. 52-59; 50 N.W. 363; 113 Mo. 570, 580; 98 Mass. 575; 129 Mo. 41. Who are fellow servants is a mixed question of law and fact. Where the facts are undisputed, it is purely a question of law for the court. 3 Mees. & W. 1; 1 Mc-Mullin, 385; 4 Met. 49; 20 Oh. 416; 112 U.S. 377; 64 Wis. 475; 28 W.Va. 269; 46 Tex. 550; 9 Heisk. (Tenn.) 866; 25 So. Car. 128; 116 Pa.St. 628; 96 N. Car. 455; 16 Neb. 254; 108 Ill. 288; 69 Ga. 137; 50 Conn, 433; 22 Ala. 294; 24 Am. & Eng. R. Cases. 443; 85 Mo. 588. Arkansas adopted the superior servant limitation by act February 28, 1893, sec. 1. And the different department limitation by sec. 2 of said act. The appellee in this case and the engineer were in the same department, and were fellow servants, under this act, and the burden was on plaintiff to show they were not fellow servants. 61 Mo. 532; 55 Mo.App. 569, 574; 58 N.Y. 217, 222; 77 Mo. 410; 24 S.W. 251; 19 C. B. (N. S.) 361. A fireman is fellow servant not only with the engineer of his own, but of all other engines. 49 Mich. 495; 4 Bush, 507; 3 Wood (U. S.), 527; 73 Lea, 423; 67 Ala. 206; 11 S.W. 867; 34 N.J.L. 151; 48 Ala. 459; 26 F. 837. It was error to read the statutes of Arkansas to the jury, and leave them to place their own construction on them. 10 Mich. 250; 29 Ill. 317; 31 S.W. 333; 33 S.W. 716. Under the Arkansas act, the burden is still on the the plaintiff to show that the injured party was not a fellow servant. 33 S.W. 716; 61 Mo. 532; 109 Mo. 350; 115 id. 165; 112 id. 45, 86; 31 S.W. 333; 24 id. 728; 55 Mo.App. 567. It was error to refuse prayers Nos. 16 and 17. 36 S.W. 462; 35 id. 364; 37 Kas. 731. Under the act the engineer and fireman are still fellow servants. Cases supra, and 112 U.S. 377; 149 id. 368; 26 F. 837; 6 Heisk. (Tenn.) 347; 13 Lea, 423; 22 Ala. 294; 67 id. 206; 49 Mich. 495; 42 id. 34; 73 Tex. 85; 31 S.W. 333; 33 id. 716. An engineer has no superintending control over the fireman; they are working to a common purpose, in the same department, of the same grade, and hence are fellow servants under the act. See cases, supra, and sec. 6249, Sand. & H. Dig.

N. F. Lamb and E. F. Brown for appellee.

Appellee was not negligent in not discovering the defect, and appellant could have discovered it by the exercise of reasonable care. The law on these points is covered fully by the charge of the court. 46 Ark. 555; 21 S.W. 648; 30 S.W. 759; 35 Ark. 602; 150 Mass. 432; 26 S.W. 592. The fact that a servant in the discharge of his duties did not discover a defect is not evidence that the master by proper inspection should not have done so. 144 U.S. 417; 8 Gray, 131; 10 id. 280; 34 Wis. 318; 28 Mich. 448; 107 U.S. 454. The jury found Becker was not negligent. 52 Ark. 368. A railway company must exercise ordinary care and diligence in furnishing reasonably safe machinery and appliances to its employees. Bailey, Master's Liability, p. 101; 54 Ark. 289; 59 id. 465. Engineer and fireman not fellow servants under act February 28, 1893. 58 Ark. 217; 54 id. 289; 58 id. 66, 78. But if they were fellow servants, if the company owed the employee any duty, and failed to discharge it, by which it has in any manner contributed to the injury, it is liable by reason of its own negligence, notwithstanding the negligence of a fellow servant may have been the immediate cause of the injury. 54 Ark. 289, 299; Bailey's Master's Liability, p.'439; 48 Ark. 333. Since the passage of the act, a fireman and engineer are not fellow servants. 48 Ark. 331, 346; 31 Ill.App. 306; 129 Ill. 535; 70 Ga. 678; 20 Oreg. 285; 5 Dak. 523; 23 S.C. 228; 9 Heisk. 27; 31 Am. & Eng. R. Cases, 329. Under said act five conditions must exist to make employees fellow servants: (1) They must be engaged in the common service; (2) they must be working together to a common purpose; (3) they must be of the same grade. (4) in the same department; and (5) neither must have command over the other. All these must concur. In this case they were not of the same grade, and the engineer had control, superintendence and command over the fireman. 30 S.W. 89, (92); 33 id. 373; 32 id. 246; id. 799, 1035; 24 icl. 477, (979); 43 F. 383, (389). Under the act the burden of proof as to who are fellow servants is still upon the company as it was before the passage of the act. 37 N.E. 11.

OPINION

BATTLE, J.

This action was brought by William Becker against the Kansas City, Fort Scott & Memphis Railroad Company to recover damages for personal injuries. The plaintiff was a fireman in the service of the defendant, and was engaged in operating one of its trains between Thayer, Missouri, and Memphis, Tennessee. On the evening of April 21, 1894, his engine, No. 30, with George Bennett as engineer, left Thayer for Memphis, and reached the latter place early in the morning of the next day, and, returning, left Memphis on the following evening, and reached Afton, Ark., at daylight the next morning, where it ran on a side track, and stopped to await the arrival of a passenger train. While there, plaintiff alighted for the purpose of putting out the head light. Before he returned to his place, the passenger train arrived, and his engine backed out; and as it did so, and while it was moving, he attempted to get upon it. In doing so, he placed one of his feet upon a step attached for the purpose of enabling the engineer and fireman to get upon it, and arose from the ground, when the step turned, and he fell. His left foot and ankle were thrown across one of the rails of the railway track, and were run over by the engine, and crushed so badly that they had to be amputated. These injuries are the cause of the damages for which he sues.

He bases his right to recover upon the failure of the railway company to maintain the step, which caused his fall, in a secure condition. This step was fastened to the lower end of an iron or steel rod, which was 1 1/4 inches in diameter and about two feet long, and passed through a solid iron beam, and was fastened and held in place by means of a tap at the top. When in proper position, it faced out at right angles to the side of the engine. When loose, it could be turned out of place, but could be fastened and made secure by means of the tap at the top of the rod. Plaintiff insists that it was the duty of the defendant to fasten the rod so that the step attached to it would not turn when the firemen or engineer stepped or leaped upon it, and to maintain it in such condition, and, for the failure to do so, is liable to him for damages. To show that the defendant was guilty of culpable negligence in the failure to discharge this duty, evidence was adduced in the trial of this action tending to prove that the engine was taken on the 18th of April, 1894, to its shops at Thayer for inspection and repair, and that on the 20th of April, at Memphis, the step was discovered to be loose, and on the 21st of April, at Thayer, and was loose on the 23d of the same month, when the plaintiff was injured. On the contrary, evidence was adduced by the defendant to show that the step was not loosened at the shops when the engine was there for repair on the 18th of April, and the inspector did not notice that it was loose or turned; that it was the duty of the engineer to examine it on every trip to see if it was loose, which could be ascertained by striking it with a hammer or shaking it; and that he was furnished with a wrench to fasten it if it was loose; and that he examined it on the evening of April 22, 1894, at Memphis, by striking it with a hammer, and found it apparently "all right."

The plaintiff testified that firemen received from $ 60 to $ 110 a month, and that an engineer's salary was from $ 100 to $ 200 for the same time; and that the defendant promoted firemen to engineers according to seniority.

Under this evidence, a question arose as to the fireman and engineer being fellow servants. Upon this question the court instructed the jury, over the objections of the defendant, as follows:

"The jury are instructed that if they find from the evidence that the plaintiff was injured by his own negligence, you will find for the defendant; but if you find that the plaintiff was not injured by his own negligence, but by the negligence of some one else, then it will be necessary for you to find by whose negligence he was injured; and if he was injured by the negligence of his fellow servant, he cannot recover, and I will read you the law of fellow servants which is as follows (Sand. & H. Dig.):

"'Section 6248. All persons engaged in the service of any railway corporation, foreign or domestic, doing business in this state, who are entrusted by such corporation with the authority of superintendence, control or command of other persons in the employ or service of such corporation, or with the authority to direct any other employee in the performance...