McGrory v. Ultima Thule, A. & M. Ry. Co.

• Decision Date: 19 April 1909
• Citation: 118 S.W. 710
• Parties: McGRORY v. ULTIMA THULE, A. & M. RY. CO.
• Court: Arkansas Supreme Court

Page 710

118 S.W. 710

McGRORY v. ULTIMA THULE, A. & M. RY. CO.

Supreme Court of Arkansas.

April 19, 1909.

Appeal from Circuit Court, Clark County; Jacob M. Carter, Judge.

Action by Patrick McGrory against the Ultima Thule, Arkadelphia & Mississippi Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Wood & Henderson, for appellant. T. D. Wynne, J. H. Crawford, and T. D. Crawford, for appellee.

McCULLOCH, C. J.

The plaintiff, Patrick McGrory, sues his employer, the Ultima Thule, Arkadelphia & Mississippi Railway Company, for damages resulting from physical injuries received while performing his duties, and alleged to be due to the negligence of other servants for whom the employer is claimed to be responsible. After all the testimony had been introduced, the trial court gave the jury a peremptory instruction to return a verdict in favor of the defendant, and judgment was entered accordingly. Thus the only question presented here is whether the testimony was sufficient to warrant a verdict in favor of the plaintiff, giving it the strongest probative force which the jury might have accorded to it.

There is little, if any, conflict in the testimony on the material points. The defendant owned a railroad which it operated as a common carrier through Clark and Dallas counties in Arkansas, and plaintiff was employed as road master and superintendent of construction. He had no authority to employ or discharge trainmen; but, in the event of accident or wreck of a train on the line, it was his duty to take charge of the train or trains for the purpose of clearing up the wreck and restoring the trains to proper service. On such occasions, he had charge of the trains, and his authority was supreme; the conductors and other trainmen being under his immediate supervision and subject to his orders. The evidence shows, however, that the conductors were left in charge of their trains subject to his orders, and that they were expected to give orders according to their judgment, except when otherwise directed by the plaintiff as superintendent. The latter's orders to trainmen were given through the conductors. On the occasion of the plaintiff's injury, one of the engines, No. 12, got off the track, and it was necessary to procure the assistance of another engine in getting it back, and plaintiff was notified. He got another engine, No. 14, and, after coupling two flat cars to it, proceeded to the scene of the wreck of engine No. 12. Night fell while the work was going on, and plaintiff went over to engine No. 14 to give an order to the engineer, and, water being up to the track on either side, he undertook to climb upon a flat car attached to the engine in order to pass over to the engine, and while doing so the engine and cars were moved, and his foot was caught between the drawheads. The signal to the engineer to move his engine was given by the conductor in response to the request of the section foreman for the engine to be moved, so that he could repair the track. This was after engine No. 12 had been gotten back on the track. Neither the conductor who gave the signal, nor the engineer of No. 14, knew of the situation of plaintiff when the signal to move the engine was given and acted upon. It was dark, and neither of the trainmen knew where the plaintiff was, or that he had started over to engine No. 14.

It is contended that the act of the conductor in giving the signal to move the train constituted negligence for which the defendant would be liable. According to the undisputed facts, the plaintiff was a vice principal of the defendant...