Kansas City Southern Railway Company v. Burton

• Decision Date: 07 February 1916
• Docket Number: 162,209
• Citation: 183 S.W. 189,122 Ark. 297
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. BURTON
• Court: Arkansas Supreme Court

183 S.W. 189

122 Ark. 297

KANSAS CITY SOUTHERN RAILWAY COMPANY v. BURTON

No. 162,209

Supreme Court of Arkansas

February 7, 1916

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

STATEMENT BY THE COURT.

William A. Burton sued the Kansas City Southern Railway Company to recover damages for personal injuries alleged to have been sustained by him while in the employment of the company by reason of its negligence. The material facts are as follows:

In January, 1915, William A. Burton was employed as a section hand by the defendant railway company. He was injured while assisting in hauling ties on a push car with a motor car pulling it, the accident happening near Ravenna, in Miller County, Arkansas. The push car was loaded with about thirty ties. They were seasoned, were eight feet long and seven inches thick. The plaintiff, Elmer Sherman and W. M Whitworth, the section foreman, were going out to unload ties at the time plaintiff was injured. Elmer Sherman was riding on the rear end of the push car and it was his duty to hold the ties on the push car. Whitworth was operating the motor car. Burton was sitting on the back end of the motor car about two feet from his foreman and was acting as brakeman.

The plaintiff himself testified substantially as follows: The push car was attached to a motor car in front of it and we were going north at the time I received my injuries. The foreman told me to disconnect the push car, which was connected by a chain to the motor car. The foreman had shut off his battery before I began to pull out the pin. When I reached over to pull out the pin the section foreman shoved his battery on. This caused the car to jump or jerk violently and I was thrown down between the push car and the motor car. I threw my hand against the ties in order to keep from getting down across the rails. I fell down between the tracks and the car of ties passed over my body and shoved me along for ten or fifteen feet right down the track. The car ran completely over me.

The plaintiff then detailed the character and extent of his injuries which will be stated later on in discussing the question of the alleged excessiveness of the verdict.

S. G Hearn, a cousin of the plaintiff, testified: I saw the accident at the time the plaintiff was hurt and was about seventy yards away; Sherman was on the rear end of the push car with his back to the motor car; Whitworth was driving the engine to the motor car and was about two feet from Burton the exhaust to the motor car stopped and in just a little bit started up again; then I saw Burton lying on the track; the push car had passed over his body.

For the defendant W. M. Whitworth testified as follows: Burton was on the motor car with me, braking, at the time he was injured. Elmer Sherman was riding on the rear end of the push car and was holding the ties on it. When we got down to a point somewhere between sixty and one hundred yards of the place where I wanted to stop I shut the batteries off. Burton pulled the spike out of the chain that coupled the cars together. He then stood up with his feet towards the push car. He gave the push car a shove and this gave the motor car a start. He then jumped off the car in the opposite direction to which it was going and this caused him to fall down. The power was not on the motor car at the time he fell. It had been cut off and the car was just running along easy. I did not start up the motor car suddenly and did not turn on the power just before Burton got off. I had instructed Burton to stay on the car until we got to where we were going to unload ties. There was no jerk whatever to the car at the time plaintiff was injured.

Elmer Sherman testified: Whitworth told Burton when they got down there close to the station to pull the pin out. The foreman shut off the power so the chain would give slack and thus enable Burton to pull out the pin and uncouple the push car from the motor car. Burton uncoupled the push car and then got up and stood with his back the way the motor car was going. At the time he stepped off, the push car was a rail or more from the motor car. A rail is forty or fifty feet long. There was no power in the motor car when Burton stepped off of it. There was no jerking or jolting of it. I was looking right at him when he stepped off and could see him until the push car ran over him. I am a son-in-law of Whitworth.

Other evidence will be stated or referred to in the opinion. The jury returned a verdict for Burton in the sum of $ 1,500 and the defendant railroad company has appealed.

Judgment affirmed. Motion for rehearing denied.

Read & McDonough, for appellant.

1. The verdict is excessive. 82 Ark. 61; 87 Id. 109; 89 Id. 9; 98 Id. 425.

2. The remarks of counsel were improper and prejudicial. 82 Ark. 562; 65 Id. 619; 75 Id. 577.

3. The court erred in admitting in evidence the written statement of plaintiff. Self-serving declarations, even though in writing can not be admitted. 92 Ark. 472; 168 S.W. 514.

4. A verdict should have been directed for defendant. There must be substantial evidence authorizing a recovery. 118 Ark. 349. Unless the section foreman knew plaintiff was in a place of danger at the time that the power was turned on, plaintiff can not recover. 113 Ark. 60; 112 Id. 446; 111 Id. 272, 486; 107 Id. 341; 78 Id. 505; 79 Id. 437. There must be knowledge of the dangerous position before the master is liable. 84 Ark. 377; 95 Id. 477.

5. The court erred in giving instruction No. 1 for plaintiff. 90 Ark. 439; 78 Id. 553; 82 Id. 562. Also in giving No. 2 and refusing No. 6 for defendant. 100 Ark. 467 and cases supra under subdivision 4.

William H. Arnold, for appellee.

1. The verdict is not excessive. Plaintiffs' injuries were permanent and he was subjected to much suffering mentally and physically. The testimony sustaining the plaintiffs recovery must be taken in its strongest and most favorable light. 86 Ark. 244; 91 Id. 337; 90 Id. 210; 93 Id. 191; 96 Id. 394; 97 Id. 486; 87 Id. 109; 97 Id. 438; 98 Id. 211; 90 Id. 233; 89 Id. 424.

2. The instructions as to mental suffering were proper. 95 Ark. 220; 96 Id. 32.

3. The photographs taken by plaintiff were admissible; those taken by defendant were not and the remarks of counsel were not improper. 102 Ark. 400; 100 Id. 437; 74 Id. 256. Juries are influenced by frivolous remarks. 109 Ark. 231; 103 Id. 307. But if improper it was invited error. 113 Ark. 82.

4. The Act of March 8, 1907, makes all corporations liable for injuries to servants resulting from carelessness, omission of duty or negligence regardless of the grade of service. 87 Ark. 587; 89 Id. 522; 92 Id. 502; 102 Id. 562. Evidence tending to prove that defendant's servant was guilty of negligence which caused plaintiff's injury was sufficient to sustain a charge of negligence. 102 Ark. 625; 109 Id. 393.

5. There is no error in the court's charge. It is not error to refuse instructions covered by others. 110 Ark. 209; 111 Id. 272; 111 Id. 538. Burton was not guilty of contributory negligence in obeying the foreman. 82 Id. 19; 79 Id. 53; 92 Id. 554.

OPINION

HART, J., (after stating the facts).

Counsel for the defendant assigns as error the action of the court with relation to certain remarks of counsel for plaintiff. It appears that a short time before the trial the attorney for the plaintiff went to the scene of the accident and took certain photographs showing the motor car and the push car on the tracks as they were at the time of the accident. The plaintiff was injured on January 14, 1915. During the first part of June he was engaged in sawing down trees for a lumber company. An agent of the defendant made arrangements with the foreman of that company to cause plaintiff to go to work on a very large tree and to allow him to take photographs of the plaintiff while so engaged without the plaintiff being aware of his doing so. The photographs taken by defendant were introduced in evidence and the plaintiff's counsel proved by Burton that they were taken without his consent or knowledge of what they were to be used for. He testified that the foreman told him to get this big tree out of the way. Counsel for the defendant objected to this testimony. Counsel for the plaintiff stated that he wanted to show that it was a "put-up job." Counsel for the defendant objected to the remarks of counsel for the plaintiff and asked for a continuance of the cause. Counsel for the plaintiff explained what he meant by the remark, that is, that the defendant had taken snap shots of the plaintiff while at work in helping to cut down a big tree without the knowledge or consent of the plaintiff and that these photographs were taken for the purpose of being used at the trial of the case. The court declined to grant a continuance but stated to the jury that he withdrew from their consideration the remarks of counsel for the plaintiff to the effect that it was a "put-up job," referring to the photographs. The court then permitted plaintiff to state that these photographs were taken without any knowledge or consent on his part that they were to be used in the trial of the present case. It is not contended that the photographs as taken by the defendant do not correctly represent the plaintiff as he was engaged in helping to cut down the tree and on this account it is contended that the remarks of counsel were prejudicial to the rights of the defendant. If it be conceded that the words "put-up job" as used by counsel for the plaintiff have a meaning of wrongful action on the part of the defendant and thus were calculated to create prejudice against the defendant in the minds of the jury, still the action of the court in excluding these remarks from the jury had the effect to remove this...