Railway Company v. Robbins

• Decision Date: 11 March 1893
• Citation: 21 S.W. 886,57 Ark. 377
• Parties: RAILWAY COMPANY v. ROBBINS
• Court: Arkansas Supreme Court

21 S.W. 886

57 Ark. 377

RAILWAY COMPANY v. ROBBINS

Supreme Court of Arkansas

March 11, 1893

Appeal from White Circuit Court, GRANT GREEN, JR., Judge.

Mrs. E M. Robbins, as administratrix of the estate of J. B. Robbins deceased, sued the St. Louis, Iron Mountain & Southern Railway Company.

The complaint alleged, in substance, that while deceased was in the employ of defendant as a brakeman on one of its trains and was in the discharge of his duty as such brakeman, he was, by the negligence of defendant and without fault upon his part, run over by the train and so badly injured that shortly thereafter he died. There were two counts in the complaint; one asked for $ 20,000 for the benefit of the widow and next of kin, and the other asked for $ 5000 for the benefit of the estate of deceased.

The answer denied negligence on the part of defendant, and alleged that the death of deceased was caused by contributory negligence on his part.

Upon the first count the jury returned a verdict in favor of plaintiff for $ 7500; upon the second, for the sum of $ 2500. Defendant has appealed.

Judgment affirmed if not, reversed and cause remanded.

Dodge & Johnson for appellant.

1. The verdict in this case is not sustained by the evidence, but on the contrary is against the evidence. The sole issue in the case is, did the deceased come to his death by reason of the defective track, without contributory negligence on his part? The presumption is that the defendant performed its duty, and when this is overcome by positive proof that there were defects, the plaintiff is met by the further presumption that the master had no notice. 46 Ark. 567-9. It does not follow, because Robbins was killed, that his death was caused by the negligence of his employer. 41 Ark. 391. There is no proof as to what caused Robbins to fall--none that he stumbled upon the ties, or that the ties were defective.

2. There was no proof of any negligence which proximately contributed to the injury of the intestate. 35 Ark. 615. The track was not defective.

3. When the evidence in any given case tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. 99 Mass. 605; Wills on Circumstantial Ev. pp. 157-8; 50 N.W. 365. The plaintiff failed to prove how the deceased came to be injured.

4. The deceased was guilty of such contributory negligence as to preclude a recovery. 41 Ark. 549; 51 id. 476; 41 id. 389; 48 id. 348; ib. 468; 53 id. 466; 46 id. 567; 54 id. 389. We have thus given all of the decisions of the State of Arkansas bearing directly upon the points in this case, and they all hold that:

1. The condition of the track could not be held as defective, if it was like all other tracks on the railroad, at the spurs, and switches, and yards.

2. That if it was defective, there was no proof to show that the track caused the accident, as was said in the Gaines and Townsend cases. In other words, the cause was not proved, and therefore the effect could not be legitimately charged to the defective condition of the track, if there had been any defect.

3. The acts of the deceased contributed proximately to his own injury; he should have seen the condition of the track, as he was standing on it in broad daylight; if he did not see it, it was his own carelessness and neglect. Then, after seeing it or standing upon it, his manner in making the coupling was in the highest degree careless or negligent, and even if his own statement as to how he was injured is not true, the proof otherwise clearly established the fact that he was guilty of contributory negligence.

See 150 Mass. 423; 5 McCrary, 471; 75 Ill. 108; 47 Miss. 420; 12 Metc. 415; 41 Miss. 131; 2 Mees. & W. 244; 1 Ad. & El. 36; 4 Bing. 142; 39 F. 620; 74 Ind. 445; 14 S.W. 243; 20 P. 711; 41 Ark. 542; 71 Mo. 164; 5 A. & E. R. Cas. 610; 12 id. 210; 13 N.W. 508; 78 N.C. 300; 20 Mich. 105; 5 Oh. St. 564; 32 Ia. 357; 45 Ark. 325; 13 S.W. 801; Thomp. Neg. 1953; 16 C. B. (N. S.), 692; Wood, Mast. & S. sec. 382; Sh. & Redf. Neg. sec. 99; 61 Iowa 714; 21 A. & E. R. Cas. 634, 642-3; 13 A. 82; 53 Mich. 212; 122 U.S. 194; 33 Mich. 134.

5. The damages are excessive. The pecuniary loss, at the highest estimate, could not have exceeded $ 45 per month. This was the limit. 52 F. 378; 41 Ark. 388; 3 Suth. Dam. p. 284; 29 Gratt. 431; 16 S.W. 929; ib. 240; 48 F. 663.

House & Cantrell for appellee.

The law of this case may be stated thus:

1. When John B. Robbins entered the service of the defendant company as a brakeman, it assumed a duty to him to construct and maintain its roadbed and tracks in a reasonably safe and suitable condition, so as not necessarily to enhance the dangers incident to the employment.

2. John B. Robbins assumed the natural risks of his employment, but did not assume the risk arising from the negligence of the appellant in constructing defective roadbed or track. This risk is not within the contract of service.

3. Robbins was not required to inspect the roadbed or track to see if there were defects. He was not bound to search for dangers, except such as were patent to ordinary observation.

4. He had a right to rely upon the defendant that it would perform its duty towards him in providing and maintaining its roadbed and tracks in a reasonably safe condition.

5. The fact that he might have known of defects, or that he had the means or opportunity of knowing of them, will not preclude him from recovery, unless he did in fact know of them, or in the exercise of ordinary care ought to have known of them.

6. If Robbins was killed by reason of the negligence of the defendant in not maintaining a reasonably safe roadbed or track, the plaintiff can recover unless Robbins was guilty of contributory negligence which proximately caused his death.

If these principles are correct, then the plaintiff is entitled to recover. See 48 Ark. 345; 100 U.S. 217; 11 A. & E. Ry. Cases, 199; 8 id. 122; 92 Am. Dec. 210; 21 Am. Rep. 389; 22 Am. St. Rep. 520; 59 Mo. 504; 49 N.Y. 53; 60 id. 607; 2 S.W. 513. As to contributory negligence, see Beach, Cont. Neg. sec. 7; 53 Ark. 458; 8 Allen (Mass.), 442; 31 A. & E. R. Cas. 322; 41 id. 366; ib. 262; 31 id. 213; 15 id. 275; 8 id. 128; 43 F. 646; 25 Am. St. Rep. 51; 27 id. 929; 44 Wis. 48. The fact that Robbins might have known of the defects in the track if he had examined, or that he had the means and opportunity of knowing them, will not bar a recovery unless he did in fact know of them, or in the exercise of ordinary care he ought to have known of them. 48 Ark. 347. But even actual knowledge is not conclusive against the servant. It is a question for the jury. Unless the defect is so obviously dangerous that a prudent man would not incur the risk, the servant may recover. Wood on Master and S. 385, 388. The coupling was attempted in the ordinary way, and only such prudence as a brakeman would exercise was required. 53 Ark. 345; 18 S.W. 172; Sh. & Redf. Neg. secs. 211, 222. The proof shows that the defective roadbed was the cause of the injury. 18 Am. St. Rep. 729. The verdict is not excessive. 41 Ark. 388; 42 F. 583; 27 Am. St. Rep. 929.

OPINION

HEMINGWAY, J.

The appellant relies upon four grounds to reverse the judgment, which are as follows:

1. That there is no proof of negligence on its part.

2. That if any negligence is shown, it does not appear to have occasioned the injury.

3. That if the proof showed that the injury was occasioned in part by the defendant's neglect, the deceased knew of the danger and assumed the risk.

4. That the verdict is excessive.

The following state of case might have been found from the evidence, and is sufficient to the determination of the three grounds first stated.

The injury was done in switch-yards where the ties lay exposed above the ground, and the spaces between them were unfilled; at the immediate place of the injury, crooked ties had been put down, some with the bow up and some with it down, their exposure being greater and the track rougher and more dangerous there than elsewhere in the yard; if the space between the ties had been filled, the danger of making couplings would have been reduced, and in some other similar yards on defendant's road such spaces were filled. There were about two miles of track in this yard, and the deceased, being a brakeman upon a local freight train, had been accustomed to doing a brakeman's work in passing there for eight months.

Upon this state of case we proceed to announce our conclusions upon the several grounds relied on.

1. The irregular placing of the ties and the failure to fill the intervening spaces is shown to have enhanced the danger of the deceased and others in like service when making couplings, and as it was in a much used switch yard, the defendant should have known of its existence and of the increased danger resulting to the brakeman from it; there is no proof that the spaces might not have been filled and the enhanced danger avoided by the exercise of reasonable care, and as it appeared that such had been done in other of defendant's yards, we cannot say that there was no proof that defendant was negligent in thus maintaining its track.

2. The deceased went upon the track where the ties were less exposed, and the fact that he passed safely along until he reached the place of their greatest exposure, in the absence of any other apparent cause, warranted the jury in finding that the condition of the track caused him to fall. The circumstances do not tend equally to two conclusions, and the rule announced in Smith v. First National Bank, 99 Mass. 605, does not apply.

3. If the track had been in the same condition where the injury occurred as in other parts of the yard, we think that knowledge of it...