Missouri Pac. R. Co. v. Ballard

• Decision Date: 28 June 1971
• Docket Number: No. 5--5597,5--5597
• Citation: 250 Ark. 1094,469 S.W.2d 72
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. James Cleborn BALLARD, Appellee.
• Court: Arkansas Supreme Court

Page 72

469 S.W.2d 72

250 Ark. 1094

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. James Cleborn BALLARD, Appellee.

No. 5--5597.

Supreme Court of Arkansas.

June 28, 1971.

William J. Smith, Boyce R. Love and Frederick S. Ursery, Little Rock, for appellant.

Howell, Price, Howell & Barron, Little Rock, for appellee.

JONES, Justice.

James Cleborn Ballard was injured while in the course of his employment as a switchman for the Missouri Pacific Railroad Company when he was struck by an automobile being driven by a Mr. Pack on a service road in the Missouri Pacific yards in North Little Rock. He filed suit in the Pulaski County Circuit Court against Pack and the railroad company, charging Pack with common law negligence and charging Missouri Pacific with negligence under the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.). Both defendants pleaded Ballard's own negligence as a bar to recovery, and the issues of negligence were submitted to the jury on interrogatories. The jury apportioned the negligence as 10% to Ballard, 10% to Pack and 80% to Missouri Pacific. It found that Ballard had sustained damages in the amount of $35,000 as a proximate result of the combined negligence. Judgment on the verdict was rendered against Missouri Pacific for $31,500 and on appeal to this court Missouri Pacific relies on the following points for reversal:

'The court was in error in failing to direct a verdict for the Missouri Pacific Railroad Company at the close of the plaintiff's case and at the close of all the evidence.

The verdict is not supported by substantial evidence.

The court was in error in giving AMI 305 among its instructions to the jury.

The court was in error in giving AMI 1909 among its instructions to the jury.'

The facts as we gather them from the record are as follows: Mr. Ballard was injured about midnight on September 4, 1966. There were three individuals involved in connection with the incident resulting in the injuries--Mr. Ballard, Mr. Pack and Mr. Thurman. All three were employees of Missouri Pacific and were the only eye witnesses to the occurrence resulting in the injuries. Mr. Ballard was a switchman in the transportation department and was engaged in his duties as such when he was injured. The defendant Pack was a locomotive engineer and was on his way to work when Mr. Ballard was injured, and Mr. Thurman was a rip track foreman in charge of repairing damaged railroad cars when they were placed on the rip track for that purpose. The rip track, where cars were repaired, was laid out in a northsouth direction and was protected at each end against careless switching operations by switches locked with blue colored locks. Only Mr. Thurman, and car repair personnel under his supervision, carried keys to blue locks and they were the only ones who had authority to open the switches into the rip track; regular switchmen or transportation personnel had no such authority.

An access road with asphalt surface about 18 or 20 feet wide ran near, and parallel to, the rip track. It was designed and used for motor vehicular traffic by employees going to and from their work at various places in the railroad yard. On the night in question, the switching crew with which Mr. Ballard was working was directed by the yard master to switch approximately 45 railroad cars into the north end of the rip track. Upon arriving at the north end of the rip track, they found the rip track switch closed with the bluc lock, so they were then directed to take the cars into the rip track from the south end. In the meantime, and while the switch engines and crew were on their way to the south end of the rip track with the cars, Mr. Thurman, the rip track foreman, was directed by the yard master to open the switches into the rip track by removing the blue locks at both ends of the rip track. Mr. Thurman drove in his automobile to the north end of the rip track and opened the switch at that point. He then drove to the south end of the rip track where he found the swtich crew in the process of taking the cars through a regular switch adjacent to the access road; after which, that switch would be thrown and the cars would be shuttled back onto the rip track, through the nearby rip track switch. Mr. Ballard was attending the switch through which the cars were passing and about five of the cars had passed through the switch when Mr. Thurman arrived in his automobile headed south on the access road. Mr. Ballard was standing an undisclosed distance from the switch and an undisclosed distance from the access road, but he had his back to the access road and was watching the cars pass through the switch which he was to realign after the cars had passed through. Mr. Thurman stopped his automobile across the access road from Mr. Ballard. He called from his automobile to Mr. Ballard and inquired as to whether the nearby rip track switch was open. There is a slight conflict in the testimony of Mr. Ballard and that of Mr. Thurman as to the exact details of what happened at this point; but, in any event, Mr. Pack, who was driving his automobile north on the access road, struck and injured Mr. Ballard.

Mr. Ballard's original complaint alleged negligence on the part of Pack in driving at an excessive rate of speed; in failure to keep a proper lookout; in failing to keep his vehicle under proper control; and in driving although afflicted with poor eyesight. The original complaint as amended alleged negligence on the part of Missouri Pacific in failing to provide Mr. Ballard with a reasonably safe place in which to work, and in requiring Mr. Ballard to go to the service road to receive instructions from Mr. Thurman. A second amendment to the complaint against Missouri Pacific alleged that Thurman was a fellow-employee of Ballard's and that his negligence was imputable to Missouri Pacific; that Thurman, as a superior of Ballard, called Ballard over to the edge of the road where he was struck by an automobile; that Thurman as agent for Missouri Pacific, was negligent in enticing Ballard to enter a place of danger in the course of his work; and in failing to warn Ballard of the approach of a motor vehicle which presented danger to his person and in sitting silently by while observing an automobile bearing down on his person and in otherwise failing to observe ordinary care under the circumstances.

Mr. Pack answered by general denial and alleged that the injuries to Ballard were proximately caused, or contributed to, by his own negligence, or resulted from a risk assumed by him; and that in so far as Pack was concerned the accident was an unavoidable mishap.

Missouri Pacific answered by general denial and alleged that Ballard's injuries were proximately caused by his own negligence or his contributory negligence and the negligence of Mr. Pack. In answer to the second amendment to Ballard's complaint, Missouri Pacific, in addition to repleading the matter set out in its original answer, further pleaded the doctrine of assumption of risk.

Approaching the points relied on in reverse order, we are of the opinion that the trial court did not err in giving AMI 1909 among its instructions to the jury. AMI 1909, as given by the trial court, is as follows:

'At the time of the occurrence, there was in force a Federal statute which provided that in any action brought against a railroad to recover damages for injury to an employee, the employee shall not be held to have assumed the risks of his employment in any case where the injury resulted in whole or in part from the negligence of any of the officers, agents or employees of the railroad.'

Missouri Pacific as well as Pack definitely and affirmatively pleaded assumption of risk and although neither requested an instruction on assumption of risk, the evidence as presented constituted very potent factors of assumed risk. Although the trial court failed to define 'assumed risk' for the jury, we are of the opinion that the giving of instruction AMI 1909 was not reversible error under the facts and circumstances of this case. In the Committee comment as to the use of this instruction is found the following: 'Giving an instruction that the employee has not assumed the risk of his employment has been sustained without regard to whether the defense has been asserted. Wantland v. Illinois Central R. Co. (7 Cir.), 237 F.2d 921.' (See also Larsen v. Chicago & N.W.R. Co., 7 Cir., 171 F.2d 841).

As to Missouri Pacific's third point, AMI 305, as given by the trial court, is as follows:

'It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others.'

This instruction as given was in the exact wording of the Model Jury Instruction 305B as approved by this court. As set out in the Committee comment, this instruction is designed for use when negligence on the part of the plaintiff is an issue, or when the jury is to consider a counterclaim or multi-party suit. This instruction was preceded by AMI 303 as follows:

'A failure to exercise ordinary care is negligence. When I use the words 'ordinary care,' I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.'

It was Ballard's contention that Thurman was an agent for Missouri Pacific; that his negligence in calling Mr. Ballard from his position of safety into the unsafe highway, and in failing to warn him of impending danger was a proximate cause of Ballard's injuries and damage; and that such negligence was imputed to Missouri Pacific. Mr. Ballard, Mr. Pack and Mr. Thurman were the only persons involved in the occurrence and each of them was charged with negligence. We find no error in giving instruction AMI 305 under the circumstances of this case.

Missouri Pacific's assignments under its second and first points are closely...