Missouri & North Arkansas Railroad Co. v. Clayton

• Decision Date: 23 January 1911
• Citation: Missouri & North Arkansas Railroad Co. v. Clayton, 133 S.W. 1124, 97 Ark. 347 (Ark. 1911)
• Parties: MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. CLAYTON
• Court: Arkansas Supreme Court

133 S.W. 1124

97 Ark. 347

MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. CLAYTON

Supreme Court of Arkansas

January 23, 1911

Appeal from Benton Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

W. B Smith and J. Merrick Moore, for appellant.

The act of the appellee in placing his foot on the rerailer was the direct proximate cause of the injury, and all the facts and circumstances, as well as the admissions of appellee and his knowledge of the hazard attending the work, go to make out a clear case of contributory negligence per se on his part, in unnecessarily placing his foot on the rerailer; and this negligence bars recovery, even if it be conceded that the air was not working properly and that appellant was negligent in that respect. 77 Ark. 367; 86 Ark. 65, 68.

While ordinarily the question of contributory negligence is one of fact for the jury, yet where, as in this case, the undisputed facts are such as that only one conclusion can reasonably be reached, it becomes a question of law. 61 Ark. 555; 91 Ark 86. No emergency existed calling for such rapidity and promptness of action as to absolve appellee from the duty to act under the circumstances as a reasonable prudent man should act. 82 Ark. 11; 90 Ark. 387. The danger in this case was so obvious that appellee was bound to take notice thereof, and he will not only be deemed to have assumed the risk incident to his act, but also to have been guilty of contributory negligence. 85 Ark. 460. See also 83 Ark. 567; Id. 600; 66 Ark. 237; 1 White, Personal Injuries on Railroads, § 410; 90 Ark. 210; 86 Ark. 68.

Festus O. Butt, for appellee.

While the evidence is conflicting as to whether the replacer could be successfully used in any way except by steadying it with the foot, yet there is evidence tending to show that such a method was the necessary one, and that it was the common custom, which, in the experience of the witness testifying had resulted in injury to no one until appellee was injured. The testimony is that the placing of the replacer in the manner indicated is relatively free from danger. It was therefore not necessarily imprudent in the appellee to steady with his foot a replacer was placed. At any rate, he could not under these facts be declared negligent as a matter of law, but it was a question for the jury. 117 S.W. 570.

OPINION

FRAUENTHAL, J.

This was an action instituted by I. G. Clayton, the plaintiff below, against the Missouri & North Arkansas Railroad Company to recover damages for a personal injury which he sustained on account, as he alleged, of the negligence of the defendant. The plaintiff was a conductor on one of defendant's freight trains running from Eureka Springs to Leslie, and, while engaged in the performance of his duty in attempting to rerail a derailed box car at a point on the line of railroad known as Baker's Switch, his left foot was caught beneath the replacer and so severely crushed and injured that it necessitated the amputation of the foot and the lower portion of the leg. It was alleged that the negligence of the defendant consisted in a failure upon its part to exercise ordinary and reasonable care in providing safe appliances for stopping the train; it was claimed that the air pump upon the train was so defective that it would not work, and on this account would not apply the air properly to the brakes so as to promptly stop the train, and that this defective condition of the appliances on the train was known at the time to the defendant and unknown to the plaintiff. The defendant denied the acts of negligence complained of on its part, and pleaded plaintiff's alleged contributory negligence as a bar to his recovery, and also alleged that the injury was the result of an accident the risk of which was an incident of his employment and assumed by him. Upon a trial of the case in the lower court a verdict was returned in favor of the plaintiff, and from the judgment entered thereon the defendant has appealed to this court. The sole assignment of error which is now pressed upon us on this appeal, and the sole ground that is urged by the defendant's counsel why this judgment should be reversed, is that the undisputed evidence shows that plaintiff was guilty of negligence which contributed to the cause of the injury he sustained. Briefly stated, the case is this: The plaintiff was in the employ of the defendant as a conductor, and was on the date of the injury engaged in running a freight train from Eureka Springs to Leslie. He received orders from his superior directing him to take two cars from the side track at Baker's Switch and carry same on to Leslie. When the train arrived at Baker's Switch the engine was backed upon the side track, and was pushing four cars on this side track back to the two cars which were to be taken up. The rear car of these four cars was a large box car, and its rear wheels were derailed while it was being pushed back upon the side track and thus ran along the ties for a distance of about 30 feet. The plaintiff in the due performance of his duties proceeded with the assistance of a brakeman to replace the wheels of this car back on the rails. The trucks on the east side of this car were on the outside of the rail and on the end of the ties, and on the west side thereof they were between the rails. The plaintiff was engaged with a replacer in rerailing the wheels on the east side, and the brakeman was assisting in replacing those on the west side of the car. On account of the situation the plaintiff was compelled to communicate all signals for the engineer to the brakeman who then gave the signals to the engineer. The wheels of the car were replaced upon the rails by means of an appliance known as a replacer. This was a large piece of steel or iron which was placed upon the ties next to the rail and with one end just under the derailed...