Kansas City, Ft. S. & M. Ry. Co. v. Becker

• Citation: 39 S.W. 358
• Parties: KANSAS CITY, FT. S. & M. RY. CO. v. BECKER.
• Decision Date: 20 February 1897
• Court: Supreme Court of Arkansas

39 S.W. 358

KANSAS CITY, FT. S. & M. RY. CO. v. BECKER.

Supreme Court of Arkansas.

February 20, 1897.

Appeal from circuit court, Craighead county; Felix G. Taylor, Judge.

Action by William Becker against the Kansas City, Ft. Scott & Memphis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Wallace Pratt, I. P. Dana, and Olden & Orr, for appellant. E. F. Brown and N. F. Samb, for appellee.

BATTLE, J.

This action was brought by William Becker against the Kansas City, Ft. 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, Mo., and Memphis, Tenn. 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 headlight. 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 1¼ inches in diameter, and about 2 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 so fasten the rod that the step attached to it would not turn when the fireman or engineer stepped or leaped upon it, and to maintain it in such condition, and, for the failure to do so, it 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 defendant 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.):

"`Sec. 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 employé in the performance of any duty of such employé, are vice principals of such corporation, and are not fellow servants with such employé.

"`Sec. 6249. All persons who are engaged in the common service of such railway corporations, and who, while so engaged, are working together to a common purpose, of same grade, neither of such persons being entrusted by such corporations with any superintendence or control over their fellow employés, are fellow servants with each other: provided, nothing herein contained shall be so construed as to make employés of such corporation in the service of such corporation fellow servants with other employés of such corporation engaged in any other department of service of such corporation. Employés who do not come within the provisions of this section shall not be considered fellow servants.'

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