Little Rock & Ft. Smith Railway Co. v. Cagle

• Decision Date: 07 June 1890
• Citation: 14 S.W. 89,53 Ark. 347
• Parties: LITTLE ROCK & FT. SMITH RAILWAY CO. v. CAGLE
• Court: Arkansas Supreme Court

14 S.W. 89

53 Ark. 347

LITTLE ROCK & FT. SMITH RAILWAY CO. v. CAGLE

Supreme Court of Arkansas

June 7, 1890

APPEAL from Pope Circuit Court, G. S. CUNNINGHAM, Judge.

Judgment affirmed.

Dodge & Johnson for appellant.

1. There must be some evidence of negligence on the part of the company, either in providing improper materials, or in suffering materials or structures, over which it has control and which have become defective, to remain in use. 119 Mass 412; 91 Ill. 474; 92 Ill. 139; 44 Ark. 529; 46 Ark. 555; 41 Ark. 382.

2. The burden of proof is on the employe, not only to clear himself of contributory negligence, but to show his ignorance of the defects which caused the injury. 43 Iowa 662; 53 Ga. 488; 56 Ga. 586. Plaintiff, by his deliberate acts, assumed such risks as were incident to the discharge of his duties, made more dangerous by causes open and obvious, the dangerous character of which he had, and at the time did have, an opportunity to ascertain. 3 Hill, 319; 39 N.Y. 471; 125 Mass 79.

3. If plaintiff knew the condition of the platform, or if he was in such a position as to have known of its condition, or if, in the exercise of ordinary care, he ought to have known of its condition, the company is excusable. 48 Ark. 346; Wood on M. & S., sec. 376, and cases cited. There must be fault on the part of the master and freedom from contributory fault on the part of the servant, and the fault must be traceable directly to the master. 90 Mass. 575; 46 Ark. 567; 41 Ark. 393; 22 Ind. 29; 20 Mich. 105; 4 Ore., 52.

A. S McKennon for appellee.

The proof shows that the scales formed a part of the railroad's road-bed, and that the ties and rails were laid by its employes, and that all the loaded cars from the mines were hauled over this track, and that couplings were almost invariably made upon the platform of the scales. The section boss and crew worked upon and kept the spur track to the mines in repair, and it was the company's duty to do so. No matter who owned the track, or the scales, it was appellant's duty to keep the track in repair, and it alone is responsible. 48 Ark. 346; 2 S.W. 513; 26 Minn. 40; 106 Ill. 534; 31 A. & E. R. R. Cas., 322; 10 S.W. 529; McKinney on Fel. Serv., secs. 29, 135; 11 A. & E. R. R. Cas., 233.

OPINION

HUGHES, J.

Appellee sued and recovered judgment for $ 5,000.00 against appellant, for an injury sustained by him, while in the employ of said railway company as yard foreman, at Coal Hill, Ark. on the 17th of December, 1887, by reason of a hole in the platform of the platform scales at that place owned by the Stiewell Coal Company, into which appellee stepped in the night time, and fell while attempting to couple cars, which the evidence shows it was his duty to do.

The appellant in its answer denied that the platform scales were defendant's property, or that it had any control over or ownership of the same, or that they were at the time of the injury out of order or defective through any fault or negligence of defendant. It denied all negligence, and charged the appellee with contributory negligence.

The proof showed that the appellee was injured on the night of the 17th of December, 1887; that the hole in the platform scales, into which appellee stepped and fell when he was injured by the moving car of appellant, was about seven inches wide by about fourteen inches long, and had existed since October, 1887, and was plain to be seen, and was known to several persons who had been about the scales; that appellee commenced work there about November 17, 1887. He worked there at night only, and swore he knew nothing of the hole in the platform before he was hurt; that he fell into the hole while the train was moving at the rate of two and a half miles an hour; that he fell on the west end of the car, his arm being over the bumper at the end of the car; he held on to it, and it pulled him out of the hole and down to another car, and, as the cars came together, his left arm and right wrist Were crushed.

It was shown that the Stiewell Coal Company owned the land where the scales were situated; that it graded the track and furnished the ties for the railroad switch which ran down to their coal mines; that the railroad company furnished the rails, and put them down on the ties, and kept the track in repair; it had nothing to do with constructing or building the scales. They were the property of the coal company. The spur track ran up to and over these scales a short distance, and they were near and directly beneath the main coal shutes of the coal company, and had been erected there by it for the purpose of weighing the coal as it was loaded on the cars of the railway company.

The court upon plaintiff's motion instructed the jury:

1. "When the defendant employed plaintiff, it assumed the duty of providing and keeping its road-bed and track in a reasonably safe condition, so as not unnecessarily to enhance the danger attending his employment, and plaintiff assumed the natural risks of his employment, but did not assume such risks as result from the negligence of defendant in failing to keep its road-bed and track in such reasonably safe condition."

3. "It devolves upon defendant to establish by a preponderance of evidence the defense of contributory negligence."

4. "If you believe from the evidence that there was a hole in the planking over the scales, over which defendant's track was laid, which was noticeable and dangerous, and which by reasonable and ordinary diligence and care should have been discovered and repaired by defendant, and such repair was not made, and that plaintiff did not know, and by the exercise of ordinary care and diligence might not have known of such defect, and, in the performance of his duties in trying to couple defendant's cars, plaintiff fell into said hole and thereby...