Kansas City Southern Railway Company v. Sparks

• Decision Date: 24 May 1920
• Docket Number: 9
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. SPARKS
• Court: Arkansas Supreme Court

222 S.W. 724

144 Ark. 227

KANSAS CITY SOUTHERN RAILWAY COMPANY v. SPARKS

No. 9

Supreme Court of Arkansas

May 24, 1920

Appeal from Polk Circuit Court; George R. Haynie, Judge; affirmed.

STATEMENT OF FACTS.

C. C Sparks brought this suit against the Kansas City Southern Railway Company and Walker D. Hines, Director General of Railroads, under the Federal Employers' Liability Act to recover for personal injuries sustained by him while engaged in the work of track repairing. At the time Sparks was injured, with other servants of the railroad company, he was engaged in taking up old rails from the track and laying new rails. During the progress of the work it became necessary to make a connection to let a train over. The rails were fastened together with fish plates, or angle bars. In order to make the connection it was necessary to disconnect the old rails and to connect the old rail with the new rail. In order to disconnect the old rails they cut the bolts out of the joints where they were fastened with the angle bar.

According to the testimony of the plaintiff, Sparks, he had a hammer and J. W. Ross, the foreman, had the cleaver. Ross was holding the cleaver and the plaintiff would hit it and cut the nuts off of the bolts. The plaintiff then knocked the bolts out of the rail. He then hit the angle bar two or three times with the hammer, but it was rusty and would not come loose. Ross, who was standing on the outside of the track then took the hammer and hit the outside angle bar a lick or two and it then became loose. The cleaver was lying there and the plaintiff picked it up. He put the cleaver in between the angle bar and the rail to prize the angle bar loose. He could not prize it loose. Ross then struck the cleaver with the hammer. This knocked the angle bar loose. The rail then rolled over striking the plaintiff's left ankle and foot and injured it severely.

According to the testimony of J. W. Ross he did not use the hammer. He was holding the cleaver and the plaintiff was striking with the hammer. There was a certain place to stand where there was no danger of getting hurt. He had instructed plaintiff where to stand so that he would not get injured. The plaintiff did not stand in the place designated. It seemed to be wrong handed for the plaintiff and he shifted his position. If plaintiff had stood where the witness told him to stand the angle bar would not have hit him. Other facts will be stated or referred to in the opinion.

The jury returned a verdict for the plaintiff and the defendant has appealed.

Judgment affirmed. Motion for rehearing denied.

James B. McDonough, for appellant.

1. The verdict is against the weight of the evidence and should be set aside. 126 Ark. 427; 133 Id. 166; Ib. 45.

2. Plaintiff assumed the risk as a matter of law and can not recover. 233 U.S. 492; 238 Id. 510; 240 Id 466; 241 Id. 313, 476; 245 Id. 445. The undisputed facts show that there was danger and that plaintiff knew of it. 79 Ark. 608; 118 Id. 304; 171 P. 1; 207 S.W. 543, 554; 174 P. 1139; 175 Id. 105; 204 S.W. 961; 96 S.E. 253; 210 S.W. 1049; 95 S.E. 925; 201 S.W. 357; 166 N.W. 735; 102 A. 661. See, also, as to assumption of risk under the Federal act. 188 S.W. 817; 197 Id. 464; 241 U.S. 229; 91 S.E. 898; 92 Id. 973; 241 U.S. 237; 159 N.W. 543; 179 S.W. 422; 91 S.E. 52; 189 S.W. 25; 188 Id. 880; 194 Id. 558; 155 N.W. 208; 93 S.E. 321; 165 P. 96.

3. The court erred in giving instruction No. 1 for plaintiff. 110 Ark. 188. The issue was not raised by the pleadings. 85 Id. 322; 87 Id. 243; 89 Id. 147; 96 Id. 206; 82 Id. 47. It submits also a conflicting theory as to negligence.

4. The court erred also in giving instruction No. 2 for plaintiff. It does not correctly state the measure of damages under the Federal act. 229 U.S. 114.

5. Instruction No. 5 was also erroneous. Cases supra.

6. The argument of plaintiff's counsel for plaintiff was misleading and prejudicial. 80 Ark. 292.

7. It was error to refuse instruction No. 2 for defendant. 80 Ark. 147; 77 Id. 201. The court also erred in refusing the other instructions requested by defendant. 74 Ark. 468; 64 Id. 332; 82 Id. 76; 104 Id. 59; 110 Id. 567. The instructions were confusing and do not correctly declare the Federal law.

Norwood & Alley, for appellee.

1. The verdict is not against the weight of the evidence. The authorities cited by appellant are really against his contention. 126 Ark. 437; 47 Id. 562.

2. The verdict is sustained by a clear preponderance of the evidence. Kirby's Digest, § 6140; 94 Ark. 365; 29 Id. 330; 59 Id. 215; 62 Id. 434.

3. Plaintiff did not assume the risk. 134 Ark. 136; 4 Labatt on Master and S. (2 ed.), p. 3965.

4. There was no error in the instructions, but where the verdict and judgment are right they should not be disturbed on the facts for mere errors in the instructions. 89 Ark. 154; 54 Id. 236; 133 Id. 28; 131 Id. 547.

OPINION

HART, J. (after stating the facts).

It is earnestly insisted by counsel for the defendant that the judgment should be reversed because the verdict of the jury is contrary to the weight of the evidence. In making this contention counsel has not taken into consideration the distinction between the rules which govern trial courts and this court with respect to setting aside verdicts. It is the duty of the trial court to set aside a verdict which it is of the opinion is contrary to the weight of the evidence, but this court has repeatedly held, that where the trial court has overruled a motion for a new trial based upon the insufficiency of the evidence, and where there is any substantial evidence to support it, the verdict of the trial court will be upheld on appeal. St. L. S.W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S.W. 768.

In the present case the trial court over ruled the motion for a new trial, and his ruling in that respect was tantamount to a finding that the verdict was not against the preponderance of the evidence. There is nothing to indicate that he acted arbitrarily in making such finding, and no remarks of the trial court appear in the record to bring the present case within the rule announced in Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851, as insisted by counsel for the defendant.

This brings us to a consideration of the question of whether there was any evidence legally sufficient to support the verdict.

According to the testimony of the plaintiff, he was holding the cleaver between the angle bar and the rail trying to pry them apart when the defendant's foreman suddenly struck the cleaver with a sledge hammer, knocking the angle bar and rail apart so that the rail fell on his foot and severely injured him.

The court instructed the jury that if it should find from a preponderance of the evidence that the cleaver was placed at the end of the angle bar and that the foreman negligently struck the cleaver with the sledge hammer, thereby injuring the plaintiff, and if it should further find that the plaintiff at the time was exercising ordinary care, the verdict should be for the plaintiff. No objection is made to this instruction.

The evidence, if believed by the jury, was sufficient to warrant the jury in finding for him, but it is earnestly insisted that the court should have told the jury, as a matter of law, that the plaintiff assumed the risk. This action was brought under the Federal Employers' Liability Act. In the case of Seaboard Air Line Railway v. Horton, 233 U.S. 492, 58 L.Ed. 1062, 34 S.Ct. 635, the court held that, the Federal Employers' Liability Act having expressly eliminated the defense of assumption of risk in certain specified cases, the intent of Congress is plain that in all other cases such assumption shall have its former effect as a bar to an action by the injured employee.

According to the plaintiff's testimony, the foreman suddenly struck the cleaver with the sledge hammer, thereby causing the injury. The work was not so obviously dangerous that an ordinarily prudent person under the circumstances would not have engaged in it. The servant assumes the risks of all dangers that are incident to the employment, and he can not recover for injuries which result to him therefrom. He also assumes the risk of injury from the manner in which he knowingly sees and observes that the work is being done. It can not be said, however, that, under the undisputed proof as declared by the record, plaintiff's injury resulted from one of the risks incident to his employment, or that the danger was so obvious and imminent that no ordinarily prudent person under the circumstances would have engaged in the work. It is also insisted that the court erred in giving instruction No. 1. It is as follows:

"If you find in this case that the foreman, J. W. Ross, placed the cleaver in the crack between the angle bar and the rail and that the plaintiff, with due care for his own safety struck the cleaver with a hammer and this lick caused the rail and angle bar to spring loose and injure the plaintiff, if you so find from the evidence, and you further find from the evidence in this connection that the foreman Ross instructed or directed the plaintiff to strike the cleaver, and at the time that he, Ross, knew where the plaintiff was standing, and by the use ordinary care on his part might or could have known, that the plaintiff was standing in a place of danger, then it was the duty of the foreman to apprise the plaintiff of the fact that he was in a dangerous place, and if you find he failed to do this, but directed the plaintiff to strike the cleaver, and the plaintiff did so, and was not negligent in obeying said instructions, and you find this act of the said foreman was a negligent act on his part, and this negligence was the cause of the injury, then, in that event, if...