Louisiana & Arkansas Railway Co. v. Miles

• Decision Date: 29 April 1907
• Citation: 103 S.W. 158,82 Ark. 534
• Parties: LOUISIANA & ARKANSAS RAILWAY COMPANY v. MILES
• Court: Arkansas Supreme Court

103 S.W. 158

82 Ark. 534

LOUISIANA & ARKANSAS RAILWAY COMPANY v. MILES

Supreme Court of Arkansas

April 29, 1907

Appeal from Hempstead Circuit Court; Joel D. Conway, Judge reversed.

Reversed and remanded.

William H. Arnold, for appellant; Henry Moore and Henry Moore, Jr. of counsel.

The master is only required to give instructions as to those dangers which are not patent to ordinary observation. 48 Ark 333. The servant can only recover upon proof that he did not know of the danger and that the master knew it and did not give warning to him. 19 S.E. 723. The danger in this case was as apparent to Walsh as it could have been to anyone. Being an intelligent man of mature age, knowing the situation, he assumed the risk of injury. 79 Tex. 130. And contributory negligence will be imputed to him as a matter of law. 5 Thompson's Com. Law of Neg. 2 Ed. 35; id. 114; 7 Am. & Eng. Enc. of L. 2 Ed. 1059; 51 S.W. 580; 44 A. 1069; 56 N.W. 612; 18 N.W. 584; 30 P. 249; 27 P. 701; 47 N.E. 182.

McRae & Tompkins and W. E Atkinson, for appellee.

MCCULLOCH J. HILL, C. J., dissenting.

OPINION

MCCULLOCH, J.

This is an action brought against appellant railway company by the administrator of the estate of M. L. Walsh, deceased, to recover damages on account of the death of Walsh, which is alleged to have been caused by negligence of the company. The plaintiff recovered a judgment for $ 2,000 damages, and the defendant appealed. There is no substantial dispute as to the facts.

Walsh was a brakeman in the employ of the railway company, and had been employed in this capacity about thirty days when he received the injury which resulted in his death. He was about 25 years of age when the injury occurred, and had formerly been a telegraph operator, and was thus engaged 12 or 15 years. He is described as a man of more than average intelligence, well educated, healthy and physically strong. He was running on a log train, the work of his train being on the southbound trip from Stamps to supply logging camps with empty cars and to pick up and haul carloads of logs on the return trip. He was injured on the return trip about midday at Gallagher, a station or switch on the road. They were to pick up enough loaded cars at Gallagher to fill out the train, and stopped there to get the cars. Walsh and the conductor were in the caboose when the engine whistled for Gallagher, and the conductor went to the back end of the caboose, and Walsh to the front end to get off while the train was in motion. It was necessary, in order to save time, for them to get off before the train stopped and walk across to the switch to meet the engine when it backed in on the side track after the loaded cars. The conductor swung off first from the rear end of the caboose and Walsh next from the front end, the speed of the train being three or four miles an hour. Walsh alighted on a pile or ridge of gravel running alongside the track, his feet slid under the caboose, and both legs were cut off. The roadbed at this point was about three feet high, and gravel was deposited along the road ten miles or more for ballasting and to raise the roadbed. The gravel was unloaded along the road from cars by means of a plow which was pulled through the train of cars, and it fell along the edge of the embankment in piles or ridges 12 or 18 inches high. It would then be placed between and under the ties by men working with shovels. This did not interfere with the running of trains.

The complaint charges negligence on the part of the defendant in placing the gravel along the track where brakemen had to alight, and in failing to instruct and advise Walsh of the hazard and danger to be encountered in alighting from a moving train where gravel had been distributed. The case was submitted to the jury upon the question of negligence in the last-mentioned particular.

The only question we are called upon to decide is whether the evidence establishes negligence on the part of the defendant; and, after a careful consideration of the question, we are convinced that no negligence is shown. The injury resulted from one of the dangers incident to the work in which the employee was engaged. He assumed the risk when he took service, and no recovery can be had for the injury. This court said in Ford v. Bodcaw Lumber Co., 73 Ark. 49, 83 S.W. 346, that "it is not the duty of a master to warn an inexperienced servant of the dangers liable to be encountered by him in the performance of his duties where experience and instruction are not necessary to enable him to do with safety the work he is employed or required to perform." Citing Fones v. Phillips, 39 Ark. 17; Railway Co. v. Torrey, 58 Ark. 217. In the same case from which the above quotation is taken, which was a case of a minor suing for an injury inflicted by negligence of the master, the court, speaking of the duty to warn the servant as to patent dangers, said: "If the danger of the employment is patent, and the servant, by reason of his youth and inexperience, does not know or appreciate the danger incident to the service he is employed to do, it would be the duty of the master to warn him of it and instruct him how to avoid it, so far as it can be, before exposing him to it."

Herein lies the distinction between the duty of a master towards a servant of immature age and inexperience, and his duty towards a servant of full age and average intelligence. In case of the former it is the duty of the master to instruct as to patent as well as latent defects if, by reason of the youth and inexperience, the servant does not know or appreciate the danger incident to his employment, and if the master knows or ought to know or take notice of his youth and inexperience. But in the case of a servant of full age and normal intelligence the master does not owe a duty to instruct or warn as to dangers which are open and obvious to the senses of any man of ordinary intelligence.

A person of ordinary intelligence is presumed capable of observing patent dangers. This does not mean that where a patent danger is created by the negligence of the master, the servant of mature years and ordinary intelligence is necessarily presumed under all circumstances to take notice of such danger so as to render him guilty of contributory negligence if he proceeds in the face of the danger. That may depend to some extent upon the circumstances. But where the danger is one that has not been created by a negligent act of the master, and is one which is an ordinary incident to the service, the servant is presumed capable of taking notice of it without warning or instruction from the master, unless on...