Railway Co. v. Davis

• Decision Date: 20 February 1892
• Citation: 18 S.W. 628,55 Ark. 462
• Parties: RAILWAY COMPANY v. DAVIS
• Court: Arkansas Supreme Court

18 S.W. 628

55 Ark. 462

RAILWAY COMPANY v. DAVIS

Supreme Court of Arkansas

February 20, 1892

APPEAL from White Circuit Court, MATTHEW T. SANDERS, Judge.

John M Davis, as administrator of the estate of Clarence Davis, sued the St. Louis, Iron Mountain & Southern Railway Company for damages because of the injury and death of Clarence, through the carelessness and negligence of the said company.

The substance of the complaint was, that the deceased was a minor, under the age of 18 years; and the defendant, against the will and without the consent of plaintiff, employed him to undertake the dangerous and hazardous services of a brakeman on its railway. That deceased was young, awkward clumsy and inexperienced, unacquainted with the duties dangers and hazards incident to such service, and that defendant carelessly and negligently failed and neglected to advise, instruct or inform him of his duties and of the dangers and hazards incident to said service, or the way or manner in which to perform said duties or guard against and avoid the dangers and hazards incident thereto. That defendant ordered Clarence to go between certain moving cars and uncouple them, and that while the said Clarence was attempting to obey this order, his foot was caught and hung between the guard rail and main rail of the track and he was run over and injured, from which injuries he died. That the service over and about the said guard rail was attended with danger, and Clarence was, through the negligence and carelessness of defendant, exposed to this danger without proper instruction, caution, warning and advice how to guard against said dangers or how to perform such service.

The complaint set out two causes of action. The first claiming damages to the estate of the said Clarence in the sum of $ 5000. The second claiming damages to the next of kin in the sum of $ 10,000.

Defendant denied negligence, and pleaded contributory negligence on the part of deceased.

The evidence tended to show that deceased was killed in the manner alleged in the complaint. He was never cautioned as to the danger attending the use of guard rails.

Plaintiff testified: I am the administrator of the estate of Clarence Davis, and was his father. He was 18 years old on September 20, 1887, and was injured on the 22d day of October, 1887, by defendant's cars at Knobel station, and died on the 8th day of November following. Clarence was raised on my farm and left home between the middle and last of June previous to his death and went into the employ of the defendant. He was an over-grown, awkward, gawky boy; he was not active, but moved and handled himself in an awkward and clumsy manner. It was noticed generally by those who saw him that he was very clumsy and awkward. He had no experience whatever in railroading. I saw him soon after he was hurt. He was in the railroad hospital at St. Louis. I was with him till he died, except a few hours. His right foot was split open from his toe to his heel, extending up to the ankle joint. His ankle was bruised and his leg lacerated to his hip. It looked as if the car wheel had run lengthwise of his leg, and mashed all the flesh on one side of the iron rail and the bone on the other side. His right arm was broken; his left hand and arm were mashed and injured, also his hip and back, and his body was bruised almost all over. It is impossible to describe the extent of his suffering. It was the most excruciating pain possible. He groaned almost every breath until he died. The physicians gave him opiates, but it was impossible to quiet him. Clarence was of a kind and affectionate disposition, and seemed to want to help me in every way he could. He bought me a fine sow and pigs and sent them to me, and paid a small account of mine at the store amounting to $ 5 or $ 6. He did this without my knowledge. He frequently sent presents to me and the rest of the family. His wages at this time were small, but he saved up enough to help me in this way. I think it was his desire to help me that caused him to go to railroading. The farm was poor; and when I talked with him and tried to persuade him to leave the railroad work, he said he could help me better in some other way than by staying at work on the farm; that it was too poor to make much on.

The jury found for the plaintiff, awarding $ 5000 damages to the estate of deceased and $ 1500 damages to his next of kin.

Defendant has appealed.

Judgment affirmed.

Dodge & Johnson for appellant.

1. To bring this case within the exception to the general rule, it must appear that deceased, by reason of his youth and inexperience, did not know or appreciate the danger incident to service about unblocked rails, and that the company exposed him to the danger without warning him of it. 53 Ark. 123. The jury must find both of these propositions sustained by the evidence before they can render a verdict for plaintiff. The evidence does not sustain either. The books are full of cases where boys younger than deceased were held to a knowledge of the danger. 88 Pa. 35; 39 Ark. 38; 71 Mo. 164. The evidence in this case establishes three facts fatal to a recovery. (1) The minor was not of tender age, small stature, or stupid appearance. (2) That the danger was one with which he had long been brought in contact. (3) That it was of such plain character that to look at it was to understand the exact kind of danger to be guarded against. 15 A. & E. R. Cases, 491; 113 N.Y. 540; 34 N.W. 113; 21 N.E. 370; 113 Mass. 396; 142 id., 522; 144 id., 601; 146 id., 182; 16 A. 737; 73 Ia. 306; 151 Mass. 152; 148 id., 228; 151 id., 86; 57 Mich. 182; 51 N.J.L. 507. When the only danger is an obvious one, even a minor of average intelligence and ample opportunity to observe and take notice of it will be held to a knowledge of it.

2. The verdict was excessive.

Sanders & Watkins for appellee.

1. The law of this case was settled in 53 Ark. 118.

2. The evidence supports the verdict. The evidence was clear that deceased had never been warned of the danger. 2 Thomps. on Negl., p. 978; 74 Mo. 13. The burden was on appellant to establish knowledge of the dangers of service, and that deceased knew how to perform his duties so as to avoid the hazards. 8 A. & E. R. Cas., 529. 76 Texas, 350, is a case strikingly in point as to the law of this case.

3. On the measure of damages, see 35 La. An., 708; 41 id., 964; 7 So. 729.

OPINION

COCKRILL, C. J.

It was settled in the former appeal in this case that it was a question of fact for the jury, and not of law for the court, to determine whether the deceased, who was a country-reared lad of narrow experience, knew that service about an unblocked guard-rail was attended with danger. Davis v. Railway, 53 Ark. 117. The testimony was not materially varied on the second trial, and the question remained one of fact, and was therefore properly submitted to the jury.

The only objection urged to the charge of the court, outside of that which goes to the measure of damages, is that it was abstract in that the jury were told that it was the defendant's duty to warn an inexperienced servant of the hazards and risks of his employment, without limiting the direction to the hazard or risk about the unguarded rail which was the sole cause of the injury. But there is no pretense that warning was given to the deceased about any other danger, and other parts of the charge given at the instance of the railway pointedly limit the jury's consideration to the hazard of the unblocked...