Missouri Pacific Railroad Company v. Hall

• Decision Date: 19 November 1923
• Docket Number: 256
• Citation: 255 S.W. 707,161 Ark. 122
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. HALL
• Court: Arkansas Supreme Court

255 S.W. 707

161 Ark. 122

MISSOURI PACIFIC RAILROAD COMPANY v. HALL

No. 256

Supreme Court of Arkansas

November 19, 1923

Appeal from Franklin Circuit Court, Ozark District; James Cochran Judge; reversed.

STATEMENT OF FACTS.

James Hall sued the Missouri Pacific Railroad Company to recover damages for personal injuries alleged to have been received by him while in the employment of the defendant, and to have been caused by the defendant's negligence.

It appears from the pleadings and the proceedings throughout the case that the action was based upon the statutory liability created under the act of Congress commonly referred to as the Federal Employers' Liability Act.

The plaintiff and several other employees who were working with him, and who witnessed the accident, testified in his behalf at the trial. It appears that the plaintiff was injured while he and another section man were throwing ties out of a box-car. A work-train was unloading ties between Mulberry and Fort Smith, Arkansas, for the purpose of putting the ties in the railroad track. The ties were being unloaded as the train moved along at a speed estimated from two, three, or four miles per hour. The work-train had been unloading ties for two or three days, and had gone from the Mulberry section to the Dyer section towards Van Buren. The train would move forward a short distance, and stop. The section men kept throwing out the ties, whether the train stopped or was in motion. One of the section crew would take hold of the front end of the tie, and another the rear end of it, and then walk to the side door of the car and, after giving the tie a swing, would throw it on the ground. On the morning of the accident Hall was the front man, and just as they went to swing the tie out of the door, the train came to a stop, and Hall's hand was caught between the end of the tie and the facing of the door of the car. The car was an ordinary box-car with side doors, so that the workmen could not tell when the train was going to stop. While Hall and his fellow-workman were in the act of throwing the tie from the car, after giving it a swing, the train was stopped with a sudden jerk, which caused his hand to be caught between the end of the tie and the door-facing of the car. The work- train took up all slack when it was stopped. The jerk was of a more sudden and violent kind than was usual when the train was stopped.

According to the evidence for the defendant, the work-train was stopped in the usual and customary way. There was no jerk which was more sudden and different from the ordinary jerk caused by the train's being stopped. Other facts will be stated or referred to in the opinion.

The jury returned a verdict for the plaintiff, and from the judgment rendered the defendant has appealed.

Judgment reversed and cause remanded.

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

A verdict should have been directed for defendant, since plaintiff did not prove that he was engaged in interstate commerce at the time he was injured, because his suit was based upon the Federal Employers' Liability Act. 229 U.S 146; 233 U.S. 473. The evidence showed that plaintiff assumed the risk, which is an absolute defense under the Federal Employers' Liability Act. 233 U.S. 492; 241 U.S. 229. See also 144 Ark. 227 on assumption of risk. Instruction number 3 was erroneous in that it told the jury that, under no circumstances, would a servant assume the risk of injury resulting from the negligence of a fellow employee. 135 Ark. 481. Instruction number 4 was erroneous in that it permitted an assessment of damages for permanent injuries, whereas there is no testimony that the injury is permanent. 109 Ark. 29; 106 Ark. 177.

George G. Stockard, for appellee.

Instruction No. 3 complained of was not specifically objected to nor the alleged error pointed out, and it is too late to complain on appeal. 76 Ark. 348; 95 Ark. 220; 93 Ark. 521; Id. 589; 104 Ark. 327.

OPINION

HART, J., (after stating the facts).

It is conceded that the action was brought under the Federal Employers' Liability Act, and that in such cases it has been held by the Supreme Court of the United States, and by this court, that the work of repairing the roadbed and bridges of a railroad after they have become instruments of interstate commerce, and maintaining them in proper condition for the passage of interstate trains, is within the Federal statute. Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 57 L.Ed. 1125, 33 S.Ct. 648; Illinois Central Railroad Co. v. Behrens, 233 U.S. 473, 58 L.Ed. 1051, 34 S.Ct. 646; Southern Pacific Company v. Industrial Accident Commission of California, 251 U.S. 259, 64 L.Ed. 258, 40 S.Ct. 130; Erie Railroad Co. v. Collins, 253 U.S. 77, 64 L.Ed. 790, 40 S.Ct. 450; Long v. Biddle, 124 Ark. 127; Treadway v. St. L. I. M. & So. R. Co., 127 Ark. 211, 191 S.W. 930, and Kansas City Southern Ry. Co. v. Leinen, 144 Ark. 454.

But it is insisted by counsel for the defendant that the evidence is not legally sufficient to sustain the verdict within the principles of law above announced. We cannot agree with counsel in this contention. The complaint alleges and the answer admits that, at the time the plaintiff was injured, and for several years prior thereto, the Missouri Pacific Railroad Company was a corporation engaged in the business of transporting passengers and freight for hire as a common carrier by railroad in interstate commerce from Coffeyville, Kan., to Little Rock, Ark. It appears from the testimony of two of the witnesses for the plaintiff that, at the time the plaintiff was injured, he was unloading ties from a work-train, and that the ties were to be used for the purpose of repairing the railroad track. The work was being done on the Mulberry and Dyer sections between Mulberry and Van Buren, in the State of Arkansas.

The section foreman of the defendant testified that he had been working for the defendant as section foreman for twenty-six years, and was with the work-train on the morning the defendant was injured. On cross- examination he was asked how long he had been working for the defendant, and answered twenty-six years. He was then asked this question: "On that same section?" and replied, "No sir, from Van Buren to Little Rock."

It is fairly inferable from this evidence that the defendant was injured on the main line of defendant's road from Coffeyville, Kansas, to Little Rock, Arkansas, and that he was injured between Mulberry and Van Buren, Arkansas while...