Missouri Pac. R. Co. v. Hunnicutt
| Decision Date | 03 May 1937 |
| Docket Number | No. 4-4620.,4-4620. |
| Citation | 104 S.W.2d 1070 |
| Parties | MISSOURI PAC. R. CO. et al. v. HUNNICUTT. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Saline County; H. B. Means, Judge.
Action by W. N. Hunnicutt against the Missouri Pacific Railroad Company and Guy A. Thompson, trustee. From a judgment for plaintiff, defendants appeal.
Affirmed.
R. E. Wiley, of Little Rock, R. M. Ryan, of Hot Springs, and Henry Donham, of Little Rock, for appellants.
John L. McClellan, of Malvern, and Tom W. Campbell, of Little Rock, for appellee.
This case was originally instituted to recover damages for personal injuries sustained by appellee while he was in the employ of the appellants. Appellee alleged that at the time of the accident he was engaged in interstate commerce, in that he was at work upon a track used in connection with a coal chute which furnished coal for the operation of interstate trains upon appellants' line of railroad; that appellants were engaged in interstate commerce, in that they were operating interstate trains over said railroad track which were supplied with coal from said chute, the coal being necessary for the operation of said trains.
A petition for removal of the cause to the federal court with proper bond was filed. The right to removal alleged was that the appellants were residents of the state of Missouri and appellee of the state of Arkansas; that therefore there was a diversity of citizenship existing between the parties; and that the amount in controversy exceeded the sum of $3,000. It was further alleged in said petition that the allegations in appellee's complaint relating to his employment in interstate commerce were untrue and fraudulently made to state a case within the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59) and to defeat the federal court of jurisdiction, and, under the allegations on motion made in the federal court, the case was remanded to the state court. The necessary effect of this order was to find (1) that the allegations of the complaint were not fraudulently made, and (2) that the facts alleged constituted a cause of action within the purview of the Federal Employers' Liability Act.
There was a trial of the cause on remand in which the appellants contended that appellee, at the time of his injury, was not engaged in interstate commerce within the meaning of the act aforesaid; also that the undisputed testimony failed to establish any negligence upon the part of the appellants which occasioned the injury for which suit for damages was brought. On these grounds the appellants requested an instructed verdict which was overruled.
On appeal to this court it was contended that the trial court erred in refusing to direct a verdict in favor of the appellants. The argument was made that appellants were entitled to a verdict because of failure of the proof to establish appellee's employment in interstate commerce and, as a further and additional ground, that there was no negligence shown. This court reversed and remanded the judgment on other grounds than those raised in the request for a directed verdict, but the alleged error of the trial court in refusing to direct a verdict was overruled, and, in disposing of that matter, it was stated: Baldwin v. Hunnicutt (Ark.) 93 S.W.(2d) 131, 133.
The appellants admit the principle that issues decided on former appeal become the law of the case, and, whether right or wrong, will not be disturbed on subsequent appeal, but cite an exception to this rule, i. e., that where the testimony on the second appeal is substantially different, the former findings of fact will not be binding, St. Louis, I. M. & S. Ry. Co. v. York, 92 Ark. 554, 123 S.W. 376, and contend the facts in this case bring it within the exception. On the first trial the facts developed by the evidence are stated in Missouri Pac. R. Co. v. Hunnicutt, supra, and on the question of negligence are identical with those in the record now before us, except for the testimony given by Mr. Morse, one of the workmen engaged in the operation which resulted in appellee's injury. On the first trial the evidence was to the effect that appellee was injured, while in the act of striking a railroad tie to loosen it, by some object which flew up and hit him in the eye, destroying it. Just what this object was the testimony did not disclose, but this has been supplied by the testimony of Morse, who was called by the appellants. He testified that this object was a rail spike, the point of which was struck by appellee as he was hammering upon the tie; that witness and appellee were called to loosen the ties in order to extract the lug screws; that appellee was handed a maul by the foreman and given directions to strike the ties to effectuate this purpose; that, in obedience to this order, appellee began working forward, striking the ties ahead of him. Witness did not know how many blows appellee had struck, but at the time the work was begun he observed no foreign object on or about the ties. After appellee had struck two or three times just before the accident and as he was in the act of again striking the tie, witness for the first time observed a rail spike lying against the rail. Witness' statement as to this matter is as follows: "It was up against the rail and when he hit the first time the spike rolled out and when he hit the other lick, the last lick on the tie, he hit it twice and it rolled out and then he hit it a third lick, the tie the spike was on, and he caught the end of it." Witness further stated in answer to questions that when appellee began striking no apparent danger was observable and that, after the spike rolled out and witness saw it, he had no time to warn appellee, who probably did not see it. The witness further stated that appellee had not been engaged in pulling any of the rail spikes; that this was done by others and it was the duty of the foreman to see that the spikes were removed from the track. (A rail spike is about four inches long and used to fasten the rails upon which the cars run to the ties, and is not to be confused with lug screws which the appellee, at the time of his injury, was engaged in extracting.)
The effect of the additional evidence in no particular disputes the evidence formerly introduced, but tends to make certain the nature of the object which struck appellee in the eye and which, on the state of the evidence at the former trial, was conjectural. Therefore the conclusion reached by this court on the first appeal remains the law of the case as to the sufficiency of the evidence to warrant the verdict of the jury on the question of negligence. The only new issue to be injected by the additional testimony is that of assumed risk. Appellants contend for the rule that, where the conditions of the work are constantly changing so as to increase or diminish its safety, it is the servant's duty to make the working place safe, and no duty in that regard rests upon the master. It is contended that this is the principle announced in Grayson-McLeod Lumber Co. v. Carter, 76 Ark. 69, 88 S.W. 597, and other cases cited in appellant's brief. If the rule be as contended, it has no application in the instant case, as the injury was not occasioned by a change in the structure caused by the operations of the appellee, but was the result of a foreign substance left upon the track by other employees which from the evidence the foreman should have seen was removed.
At the request of the appellants the trial court correctly instructed the jury on the doctrine of assumed risk, both as to the ordinary and usual risks of employment and the extraordinary risks which were open and obvious to the servant. It is contended that under the testimony in this case the danger from the rail spike was open and obvious to that degree that the trial court should have so declared as a matter of law. Appellants have evidently overlooked that part of the testimony of Morse to the effect that the rail spike was in a manner concealed so as not to be observable when appellee first began the work he was directed to perform by the foreman, and that when witness first saw the spike roll into view he had no opportunity to warn appellee of its presence and appellee had no time to check his blow and probably did not see the spike. This evidence clearly made it a question for the jury as to whether or not the danger was so open and obvious as to be plainly discoverable by appellee. If it was not of this character, he could not be deemed as a matter of law to have assumed the risk of a danger which he might not have known. This is especially true as appellee, at the time, was acting under the direct orders and supervision of his foreman. The cases cited by appellant sustain this conclusion. Among these are: Murch Bros. Const. Co. v. Hays, 88 Ark. 292, 114 S.W. 697; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S.W. 1048; Sheldon Handle Co. v. Williams, 122 Ark. 552, 184 S.W. 43; Moline Timber Co. v. McClure, 166 Ark. 364, 266 S.W. 301.
On the question as to whether or not appellee was engaged in interstate commerce at the time of the accident within the meaning of the Federal Employers' Liability Act, supra, the evidence on both the...
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