Kansas City, Ft. S. & M. R. Co. v. Becker
| Decision Date | 17 June 1899 |
| Citation | 53 S.W. 406 |
| Parties | KANSAS CITY, FT. S. & M. R. CO. v. BECKER.<SMALL><SUP>1</SUP></SMALL> |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Craighead county; Felix G. Taylor, Judge.
Action by William Becker against the Kansas City, Ft. Scott & Memphis Railroad Company for personal injuries. There was a judgment for plaintiff, and defendant appeals. Affirmed.
Wallace Pratt, I. P. Dana, and W. J. Orr, for appellant. E. F. Brown and N. F. Lamb, for appellee.
This is the second time this action has been before this court on appeal. The opinion delivered when it was here the first time is reported in 63 Ark. 477, 39 S. W. 358. It was instituted by William Becker against the Kansas City, Ft. Scott & Memphis Railroad Company to recover damages for personal injuries. Plaintiff was a fireman in the employment of the defendant, and was engaged with others in running an engine of his employer from Thayer, Mo., to Memphis, Tenn., and return; Thayer being the starting point. He left the latter place about 6 o'clock in the evening on the 21st of April, 1894, and arrived at Memphis about 4:30 in the morning of the next day, and, returning, left Memphis about 6 o'clock in the evening of the 22d of April, and was injured at Afton, in this state, about daylight of the following morning. He was seriously and permanently injured by the step on the left-hand side of engine No. 30, on which he was employed, turning as he jumped upon it in order to get into the engine cab; the engine being at the time in motion. As a result of the injury, amputation of one of his legs, just below the knee, was necessary.
To be more specific, we relate the cause, manner, and circumstances of the injury more at length. At the rear end of the engine, at the entrance to the cab, were two steps — one on either side — for the use of employés. The engineer and fireman rode in the cab, — the former on the right side, and the latter on the left. Each step was fastened to the lower end of an iron or steel rod. The upper end of the rod passed through an iron beam nine inches thick, and was fastened and held in place by means of a tap at the top. When in proper position, the step faced out at right angles to the side of the engine. When the rod was loose, the step could be turned out of place, but this defect could be remedied by means of the tap. A short time before plaintiff was injured, the engine on which he was acting as fireman and the train attached were moved on a side track at Afton for the purpose of allowing a passenger train to pass. While the former train was upon the side track, the plaintiff, by direction of the engineer, left the cab to put out the headlight, and while so doing the passenger train passed. About the time he finished his work the engineer commenced moving the train from the side track upon the main line, and, while it was running about as fast as a man would ordinarily walk, plaintiff attempted to get upon the engine by means of the left step, and was injured in the manner stated.
The maintenance of the steps in good repair and safe condition was intrusted to two employés of the defendant. It was the duty of the engineer, when his engine was on the road and away from Thayer, to examine and keep the steps in safe condition by means of the tap at the end of the rod, for which purpose he was provided with the necessary tools. It was also his duty, when he ran his engine into the roundhouse at Thayer, where the engines operated on the road between Thayer and Memphis, on their return from the latter place, were inspected and repaired, to report any defects in his engine which needed repairing, and blanks were furnished him for the purpose. At Thayer was a machinist, named Johnson, whose duty it was to inspect the lower part of the locomotives, including the steps, when they came in, as a protection against any neglect of the engineer. Johnson also made repairs. The bad condition of engine numbered 30, if attributed to the fault of any one, was due to the negligence of one or both of these employés. To prove that the defendant was liable for the culpable negligence of these employés in the failure to discharge their duties, evidence was adduced in the trial of this action tending to prove that the engine numbered 30 was taken on the 18th of April, 1894, to its shops at Thayer for inspection and repair, and that on the 21st of April, two days before plaintiff's injury, an employé of the defendant, while in the roundhouse at Thayer, discovered that the engine step on the left or fireman's side was loose, and turned halfway round, so that it projected under the engine, and that the engineer on the 22d of the same month, while at Memphis, discovered the step on the right side of the engine to be loose, and tightened it, and that the left step was loose on the next day, when the plaintiff was injured. On the contrary, evidence was adduced by the defendant to show that the steps were not loosened at the shops when the engine was there for repairs on the 18th of April, and that the inspector examined them, and did not notice that either of them was loose or turned, and that the engineer examined the left step on the evening of April 22, 1894, at Memphis, by striking it with a hammer, — the usual test, — and found it apparently "all right."
The jury, before whom the issues were tried, returned a verdict in favor of the plaintiff against the defendant for the sum of $5,000, and the court rendered judgment accordingly. To reverse this judgment, an appeal by the defendant to this court is prosecuted.
It is insisted by appellant that its duties to appellee were imposed and governed by the laws of Missouri, where he was employed and their contract for service was entered into, and that the risks assumed by the contract were determined by the same laws; that the relation of master and servant could be created between them only by contract; and that the duties and risks assumed grew out of that relation. It is true that the relation was created by contract, but the duty upon which the appellee relies to recover in this action, if it existed, was imposed by law, and arose from the relation, rather than the contract. For a neglect to perform this duty the appellee had the right to elect to sue upon the contract, or to treat the wrong suffered by the neglect as a tort, and bring an action ex delicto. The rule in such cases as this is correctly stated in Nevin v. Car Co., 11 Am. & Eng. R. Cas. 92, 101, as follows: "Where the duty for whose breach the action is brought would not be implied by law, by reason of the relations of the parties, whether such relations arose out of a contract or not, and its existence depends solely upon the fact it has been expressly stipulated, * * * the remedy is in the contract, and not in tort, when otherwise case is an appropriate remedy." Clark v. Railway Co., 64 Mo. 440; Bliss, Code Pl. (3d Ed.) § 14; Pom. Code Rem. (3d Ed.) §§ 568-571; 4 Elliott, R. R. § 1693.
The railroad of appellant is built and operated in part in this state. In regard to such railroads the constitution provides as follows: "All railroads which are now or may hereafter be built and operated, either in whole or in part, in this state, shall be responsible for all damages to persons and property, under such regulations as may be prescribed by the general assembly." Article 17, § 12. Section 6249, Sand. & H. Dig., provides: ...
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