Kansas & Texas Coal Co. v. Brownlee

• Decision Date: 01 June 1895
• Citation: 31 S.W. 453,60 Ark. 582
• Parties: KANSAS & TEXAS COAL COMPANY v. BROWNLIE
• Court: Arkansas Supreme Court

31 S.W. 453

60 Ark. 582

KANSAS & TEXAS COAL COMPANY v. BROWNLIE

Supreme Court of Arkansas

June 1, 1895

Appeal from Sebastian Circuit Court, Fort Smith District, EDGAR E BRYANT, Judge.

Reversed and remanded.

Clendening Mechem & Youmans for appellant.

There is nothing in the law of Arkansas, or in the common law which affords the slightest ground for the presumption that a boy of fourteen is incompetent for duties requiring no special strength, skill or intelligence. On the contrary, the presumption is exactly the other way. 1 Gr. Ev. sec. 367; Schouler's Dom. Rel. sec. 398; 56 Ark. 232; 133 Pa.St 538; 53 Mich. 274; 125 N.Y. 737; 38 id. 481. Not only was there no evidence showing the boy incompetent, but the proof was clear that he was competent, and that it was the custom and usage to employ boys of Murphy's age as trappers, and that they made safe, reliable trappers. So no negligence could be inferred from the mere fact that defendant employed a boy fourteen years old. 3 Wood, Ry. Law, p. 187; Wood, Mast. & Serv. see. 394; Bailey, Mast. Liability etc. p. 3; 71 Wis. 557; 133 Pa.St. 538; 33 Ark. 602; 54 id. 239; 59 id. 465; 95 U.S. 439; 122 id. 194. What more convincing proof can be offered that a given act was "what a reasonably prudent person would ordinarily do under the circumstances of the situation" than to show that every one else performs it that way?

Adiel Sherwood for appellant.

It was error to assume as a fact that defendant was negligent simply because a boy of Murphy's age was employed. 61 Tex. 262; 26 S.W. 592; 46 Tex. 365; 38 Mich. 54; 18 Mo.App. 115. Defendant, in selecting its servants, is only held to ordinary care, such care as men of prudence, engaged in like business, are in the habit of using. 54 Ark. 393; 30 Minn. 470; 104 N.Y. 439; 66 id. 249; 56 id. 7, 8; 77 Pa.St. 286; 46 Ark. 567; 119 Mo. 484; 80 Ga. 755; 23 S.W. 679; 78 Ala. 504; 38 Mich. 546; 36 Ark. 41; 42 id. 321; 6 Pet. 715; 75 N.Y. 118; 2 Doug. (Mich.) 37; 85 Mo. 22; 48 Ark. 475.

Ben T. Duval and John H. Pitchford for appellee.

Appellant seeks to excuse itself of negligence in employing as trapper a boy of Murphy's age and experience solely on the grounds that other mining companies in this and other States usually employ boys ranging in age from nine to fourteen years for the position of trapper. If the act was negligent (and the question is one of fact, pure and simple), then it was for the jury to say whether or not appellant failed to exercise ordinary care. Custom can not justify a negligent act. Black, Proof and Pldg. Accident Cases, p. 45, sec. 37; 5 Hun, 523; 61 Tex. 3; 7 Mo.App. 358. See, also, 107 U.S. 454, cited and approved in McKinney, Fellow Servants, p. 183-4; 115 Ind. 450. When the facts from which negligence is sought to be inferred are within the experience of all men of common education, the jury must determine the question of negligence. 55 Ark. 598; 53 Cal. 32; 7 Gray, 319; 1 Thompson, Neg. p. 513, see. 16; 2 id. p. 799, see. 14, note 2; Black, Proof & Pl. Acc. Cases, sec. 39; 50 N.W. 1026.

OPINION

BUNN, C. J.

This is an action instituted and determined in the Sebastian circuit court, Fort Smith district, by the appellee, against the appellant company, a corporation organized under the laws of the State of Missouri, and doing business in this State, for personal injuries alleged to have been done to the aforesaid John Brownlie, a minor, by the negligence of the other servants and employees of the appellant company, damages being laid at the sum of $ 10,000. Judgment for plaintiff for $ 5,000, and appeal to this court by defendant.

The evidence shows that appellant company on the 16th September, 1891, was operating a coal mine in Sebastian county in this State, and that, among its employees, were the plaintiff, then aged 17 years; Thomas Murphy, aged 14 1/2 years; John Lewis, John Desper and Walter Rylance, the pit boss. Plaintiff and Lewis were drivers of the mule cars that hauled the coal along the entries extending from the. point of mining same to the entrance into the mine. Appellee was driving in the main entry, and Lewis in a side entry. These entries, or underground roads, intersected before the incline that led out and up to the surface, and at this point of intersection there was a door across the mouth of the side track, which could be closed so as to shut off the air or let it through. And it was also used to cut off the passage of the cars; that is to say, when the door was closed across the entry, the cars stopped before reaching it. The cars along the main track, on this occasion driven by appellee, had ordinarily the right of way, that is to say, without a signal to stop, they moved on; while the cars on the side entry or track never approached the point of intersection without a signal to do so. To the driver of this entry, the opening of the door is the signal to advance, and the closing of the same was a signal to stop. Another signal consisted in the motion of a lantern in the hands of a person whose business it was to open and close the door, both for the passage and stoppage of the cars, and also for the ventilation of the mines. This duty was at the time of the alleged injury performed by Thomas Murphy, and his business was denominated that of trapping, and he was called a trapper.

On the 16th September, 1892, appellee was driving' his loaded ear from the coal pit on the main track towards the entrance and received no signal from trapper Murphy to stop before reaching the point of intersection; and at the same...