Missouri Pacific Railroad Co. v. Warrick

• Decision Date: 02 June 1924
• Docket Number: 23
• Citation: 262 S.W. 644,164 Ark. 556
• Parties: MISSOURI PACIFIC RAILROAD CO. v. WARRICK
• Court: Arkansas Supreme Court

262 S.W. 644

164 Ark. 556

MISSOURI PACIFIC RAILROAD CO. v. WARRICK

No. 23

Supreme Court of Arkansas

June 2, 1924

Appeal from Franklin Circuit Court, Charleston District; James Cochran, Judge; affirmed.

Judgment affirmed.

Thos B. Pryor and Vincent M. Miles, for appellant.

1. The most grievous error on the part of the trial court was in the failure to properly submit the issue as to whether or not the negligence of the appellant in failing to give the appellee a caution card from Vian to Sallisaw was the proximate cause of the injury. It was of vital importance that the court properly submit to the jury the issue as to which of the various things in evidence would constitute the proximate cause of the injury, hence, in giving instructions 4 and A-4 the court committed incurable and prejudicial error. For while a case is conceivable where the words "cause, or contributed to cause" might be treated as one phrase, meaning "cause," where there is only one ground of negligence relied upon, yet that is not this case. On the contrary the whole gist of this controversy resolved itself around which one of several things was the proximate cause of the injury, and the main inquiry addressed to the jury demanded a finding by them as to what actually was the proximate cause. 84 Ark. 421; 87 Ark. 576; 86 Ark. 289; 91 Ark. 261; 97 Ark. 160.

2. Instruction No. 5 given by the court on the subject of assumed risk is directly contrary to the decisions of this court on that subject, in telling the jury that, under no circumstances, did the appellee assume the risk of any negligence of the appellant or of its officers, agents or servants. Moreover this suit was brought under the Federal Employers' Liability Act, and this court has recently held that a servant assumes the risk of negligence of his fellow-servant when he knew and appreciated the danger therefrom. 161 Ark. 122.

3. There was no competent evidence to prove that the train was backing that appellee's train ran into. The alleged statement of Tom Murray, the brakeman, made in Van Buren, after the accident occurred, was competent only to impeach his testimony, and was not competent to prove that the train was backing up. 52 Ark. 78; 57 Ark. 287; 58 Ark. 168; 67 Ark. 147; 78 Ark. 381; 97 Ark. 160; 105 Ark. 247; 137 Ark. 107; 143 Ark. 565.

Chew & Ford, for appellee.

1. The act of Congress under which this suit was brought, of April 22, 1908, U. S. Comp. Statutes, 1918, §§ 8657, 8659, gives the employee an absolute right of recovery for any injuries he may receive through the negligence, in whole or in part, of the carrier, through its agents, officers and employees, although it may be shown by the proof that the employee was himself guilty of some act of negligence that, cooperating with the negligence of the carrier, brought about the injuries to the employee while he and the carrier were engaged in an act of interstate commerce. 233 U.S. 42; 229 U.S. 114; 127 Ark. 170. The only questions, therefore, presented for the jury to determine were: First, was appellant guilty of any acts of negligence, in whole or in part, that caused or brought about the injuries complained of? Second, was appellee guilty of any act of negligence cooperating with appellant's negligence that contributed to defeating his recovery, but for the purpose of enabling the jury to diminish the amount of his recovery? The verdict of the jury has determined both of these questions against the appellant.

2. A servant, as we understand the doctrine of assumed risk, on entering the employ of a master, assumes all of the risk that is ordinarily incident to the employment, but he does not assume any risk growing out of the negligence of the employer through the negligence of any of its agents or officers. 238 U.S. 507; 235 U.S. 375; 118 Ark. 49; 102 Ark. 562; 106 Ark. 25; 85 Ark. 503; 67 Ark. 209; 161 Ark. 122; 252 U.S. 18.

3. In passing upon the instructions, they will necessarily be read and construed as a whole, and, when that is done, it will be seen that there was no reversible or prejudicial error in any of them. Instruction 4 declares the law as defined by this court. 129 Ark. 530; 124 Ark. 118.

OPINION

HUMPHREYS, J.

This suit was brought in the circuit. court of Franklin County, Charleston District, by appellee against appellant, to recover damages under the Federal Employers' Liability Act, on account of personal injuries received through the alleged negligence of fellow-servants. The alleged acts of negligence contained in the complaint are as follows: That, in operating its trains under the block system between Coffeyville, Kansas, and Van Buren, Arkansas, for the protection of its employees, it violated the rule of the system by permitting extra six south, a freight train, to enter the block and occupy the main track between Vian and Sallisaw, Oklahoma, without furnishing an order or caution-card to appellee or his conductor, Charles Keith, advising them to proceed with their train, extra 1806 south, under control against said extra six south to Sallisaw, but, in lieu thereof, delivering them an order or caution-card advising them to proceed with their train from Gore to Vian under control of said extra six south; that appellant, through its agents at Vian, lowered the arm of the semaphore post and displayed the green light from the board thereof, which indicated that the main track between Vian and Sallisaw was clear, and that they could proceed with safety; that, about two miles south of Vian, said extra six south was stopped and backed toward the train being operated by appellee, in violation of rule No. 99, requiring that, when trains are stopped on the main track for any cause, a flagman be sent back from the rear end of said train with flags and signals a sufficient distance to insure full protection to approaching trains; that a box-car was attached to the caboose of said extra six south, which obstructed the lights on the rear end thereof from view.

Appellant filed an answer denying seriatim the alleged acts of negligence, and pleading the assumption of risk by appellee in bar of a recovery, and contributory negligence to diminish the amount of any recovery. Appellant also filed a cross-complaint claiming damages in the sum of $ 1,800 against appellee for driving the locomotive operated by him into the caboose and several boxcars attached to the rear end of said No. 6 south, through his alleged carelessness and negligence in failing to maintain a lookout, in failing to heed signals to stop his train, and in exceeding the maximum speed limit of thirty miles an hour, fixed by order of appellant.

Appellee filed an answer to the cross-complaint, denying each allegation of negligence contained therein, and pleading specifically that, whatever damage resulted from the collision was caused by the carelessness and negligence of appellant, as set out in appellee's complaint.

The cause was submitted to a jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and consequent judgment for $ 10,000 against the appellant, from which is this appeal.

According to the undisputed testimony in the record, appellant operated a railroad under the block system between Van Buren Arkansas, and Coffeyville, Kansas, passing through the State of Oklahoma. Appellant and its employees were engaged in interstate commerce at the time of the collision of the trains Nos. 6 and 1806 extra south, which resulted in the injury of appellee. The block system was one by which the conductors and engineers operating trains between certain stations were apprised of trains in front of or following them, and directing them, by caution-cards, to operate their trains under control with reference to particular trains in front of them. The movement and control of all trains between Van Buren and Coffeyville were under the control of appellant's train dispatcher at Van Buren, who directed the movement of all trains between said points by telegraph and telephone orders. The main line track was cut up into blocks. There was a block between Gore and Vian and between Vian and Sallisaw. Appellant maintained a semaphore board at Vian. It consisted of a board and arms attached to a post. When the arms were pointing downward and a green light was exhibited on the board, it was a signal to approaching trains that the track was clear, and to proceed; but, if a red light was displayed, it was a signal to stop for telegraph or telephone orders. When train No. 1806 extra south, operated by appellee and his conductor, C. R. Keith, pulled into Gore the night of January 31, 1921, the agent at that station handed them a caution-card directing them to operate their train between block stations Gore and Vian under control against train No. 6 extra south, which was in front of them in said block. This caution-card became ineffective, or, in railroad parlance, died at Vian. The caution-card given appellee and his conductor contained an incorrect order. The order sent by the dispatcher to the agent at Gore to deliver to appellee and his conductor was to proceed with their train under control against extra six south from Upson, a station between Gore and Vian, to Sallisaw. The caution-card containing the correct order was never given to them. In obedience to the order contained in the caution-card given them by the agent at Gore, appellee and his conductor proceeded with their train under control against extra six south to Vian. As they approached Vian they observed the arms of the semaphore post pointed downward and the green light exhibited on the semaphore board, so, under the belief that extra six south had passed Sallisaw, they entered the block between Vian and Sallisaw and proceeded southward without stopping...