Railroad Co. v. Dial

• Decision Date: 23 December 1893
• Citation: 24 S.W. 500,58 Ark. 318
• Parties: RAILROAD COMPANY v. DIAL
• Court: Arkansas Supreme Court

24 S.W. 500

58 Ark. 318

RAILROAD COMPANY v. DIAL

Supreme Court of Arkansas

December 23, 1893

Appeal from Garland Circuit Court, A. M. DUFFIE, Judge.

STATEMENT BY THE COURT.

Appellant was making up a train at its depot in the city of Hot Springs, On the yard of the company, near the depot, at a street crossing, a bridge spanned the track. Appellee, a boy fifteen years of age, was standing erect upon a freight car as it passed under the bridge, and, same being too low to admit of his passage in this position, he was struck upon the head, and knocked from the car, receiving a severe scalp wound, from which he suffered greatly, and was permanently disfigured. He sues the company for $ 5000, alleging that he was induced to go upon the car by the conductor of appellant for the purpose of throwing off a brake; that the car was not in motion when he ascended; that on reaching the brake he found he could not move it, and informed the conductor, who signalled the engineer to back the cars; that, as soon as the brake was loosened, he threw it off, and the cars began to move, and he made an effort to get down, but, before he could do so, the cars had passed under the bridge, and he was struck, and received the injury of which he complains, which he says was caused by the gross carelessness and negligence of the appellant. He says also that he had never been in the employment of the appellant, knew nothing of the operating of said cars, or the labor incident thereto, and had no knowledge of the height of the bridge, or that there was danger in the task he was performing.

The appellee was the only witness on his own behalf as to the occurrence, and his testimony, in substance as it relates to the cause and manner of the injury, corresponds with the allegations of his complaint. He says that a freight train was standing on the track at the passenger depot near the intersection of Benton and Malvern avenues in the city of Hot Springs. He was standing on the platform, and the conductor said: "Lewis, get up on top of that freight car, and throw a brake off." He got on the car, and told the conductor he could not throw it off; it was so tight. The conductor signalled the engineer, and the train was backed two or three feet, and then went forward. He threw the brake off, and started to get down, and the conductor told him not to get down; that he might get hurt. The train was pulled east toward Malvern; then backed up and got two loaded cars and started east again. He says he must have looked back up towards town, and did not see the iron bridge at the crossing. It struck him on the top of the head, and knocked him off, and he did not know what happened after that. He was standing on top of the car when it went under the bridge. At the time the conductor told him to get on the car he was about ten yards off. Had gone down to the depot for the purpose of blacking boots, carrying grips, etc., which he frequently did. Was in the habit of doing so. The conductor and train men all knew him well. Used to black their boots and help them to do other work on the cars, and they did not drive him away. They used to tell him to jump on the cars and let off the brake, and they would give him a ride. Rode on the engine one time, and on baggage car another time, to Cove Creek, and they sent him back on train. Never got on train unless told to do so by train men.

The answer of the company denied all the allegations of the complaint, and it introduced the general superintendent, the conductor, baggagemaster, engineer, fireman and brakeman. The superintendent stated that he employed all conductors and men working on all trains, and had given all conductors and trainmen orders to keep boys off the trains. The conductor and several others testified that they had orders to keep boys out of the yard and off the cars, and the conductor said he had ordered appellee off that morning. There was proof by the employees of the company that appellee was in the habit of jumping on and off the cars, that they had tried to keep him out of the yard and off of the cars, and that they had often ordered him out of the yard, and that he had made himself troublesome to them. Verdict and judgment for $ 500. The railroad appeals.

Reversed and remanded.

J. M Moore for appellant.

The conductor had no authority to put plaintiff to work, or to direct or require bystanders to assist in operating the train; and a stranger who assists in such work cannot recover for injury sustained while engaged in such voluntary work. 38 A. & E. R. Cas. 14; 72 Mo. 62; 60 id. 415; 69 Pa.St. 213; 4 A. & E. R. Cas. 599; 68 Me. 49; Thomps. Neg. 1045; 45 Ark. 246.

E. W. Rector for appellee.

The conductor, although acting contrary to his express authority, has implied authority to employ appellee to do the work he was requested to do, and appellee was not a volunteer nor a trespasser, but a servant put in'a perilous position without warning or notice. Wood, Mast. and Serv. (2nd ed.) p. 576; 83 Ala. 238; 3 Am. St. Rep. 715; 3 So. Rep. 764; 107 Mass. 108; 9 Am. Rep. 11; 41 id. 337; 27 Am. St. Rep. 902; 5 lb. 510; 16 N.W. 331; 7 Am. St. Rep. 432; 26 id. 927; 57 Am. Rep. 268.

2. The instructions for appellee were based upon 48 Ark. 460 and 46 id. 423.

OPINION

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

The controverted questions of fact are settled by the verdict in favor of appellee. Did the court declare the law in the following instruction: "(2) That if you believe that Louis Dial got on the cars of the defendant, at the request of Hensley, to unset the brake of said car, and that Hensley knew at the time, or had sufficient time and opportunity to know, and ought to have known, that plaintiff, when standing on the top of one of the defendant's cars, could not pass under the iron bridge without injury to himself, and did not warn plaintiff of the danger, and that plaintiff had no knowledge of the danger of his position on said car, you should find for the plaintiff in such sum as is warranted by the evidence, if you believe that Hensley had authority to employ the boy for said purpose, or that said employment came within the scope of his authority?"

The evidence as to the conductor having...