Sands, Receivers Missouri & North Arkansas Railroad Co. v. Linch

• Decision Date: 24 January 1916
• Docket Number: 122
• Parties: SANDS, ET AL. RECEIVERS MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. LINCH
• Court: Arkansas Supreme Court

182 S.W. 561

SANDS, ET AL. RECEIVERS MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. LINCH

122 Ark. 93

No. 122

Supreme Court of Arkansas

January 24, 1916

Appeal from Carroll Circuit Court; J. S. Maples, Judge, affirmed.

STATEMENT BY THE COURT.

Appellee sued the appellants for personal injuries, alleging that he was employed by appellants as a bridge man and was riding along on appellants' track on a motor car that was in charge of a fellow employee, appellee having no duty to perform in relation thereto; that the car, through the negligence of these employees, was allowed to collide with a sheep by which it was violently thrown from the track resulting in severe injuries to the appellee, which he described in his complaint; that it was appellants' duty under the law, to keep its right-of-way fenced so as to prevent sheep from getting on the track and that appellant had negligently failed to comply with that duty; that the employees had also failed to keep and maintain a careful lookout.

The appellants denied the allegations of negligence; admitted that it was their duty to maintain a fence along the right-of-way to keep stock off of the track, but alleged that the allegations of the complaint to that effect were surplusage, and moved to strike out such allegation. Appellants also set up the defenses of assumed risk and contributory negligence. The answer also contained a demurrer to that part of the complaint alleging that it was the company's duty to keep the right-of-way fenced. The demurrer to this allegation of the complaint was presented to the court and overruled.

The evidence, stated from appellee's viewpoint, and giving it the strongest probative force in his favor, tended to show that the appellee and several other employees of appellants who had been at work on appellant's bridge, at the conclusion of their day's work were traveling on a motor car to the section house. There were seven or eight men on the car. Henry Lenox was in charge of the operation of the car and Jeff Hubbs was running it. A flock of fifteen or twenty sheep was observed alongside the track, which, at that point, was enclosed on either side by a wire fence. When the sheep were sighted, under the directions of foreman Lenox the car was "slowed down." All of the frightened sheep went off of the right-of-way except two. These were within the enclosure going along by the side of the fence. Lenox then told the man who was running the car to "let her go," and it picked up speed and kept on increasing its speed until it struck the sheep. The motorman increased the speed under the direction of Lenox. He gave the order to put on more speed. At the time he gave this order the two sheep were inside the right-of-way. When the car struck the sheep all were thrown off, including the appellee, who was rendered unconscious and received the injuries for which he sues. From the point on the track where the car slowed down to the point where the accident occurred it was some 250 or 300 yards. Appellee was sitting on the front part of the car on the corner.

The motorman testified that he could have stopped the car if he had known that everything was not in the clear, and that he would not have started the car at the high rate of speed if he had known there was a sheep on the right-of-way; that the sheep was on the foreman's (Lenox's) side and he ordered witness (the motorman) to increase the speed which he did at the time because he was thus ordered. The sheep began running through the fence all along and had all escaped except the two. One of these, about the time it got even with the car, hit a guy-wire and was thrown back and then headed for the track, making one or two jumps, and fell right on the rails, where the car hit it.

One of the witnesses stated that they were trying to make the hill and that the car would not hardly make the hill with nine or ten employees aboard unless it had a pretty good speed. There was nothing that could have been done after the car started up at the increased speed, ordered by the foreman, to have kept the same from being derailed when it struck the sheep.

Witness Bailey testified that these two sheep were seen all the way from the time they left the bunch up till the time the car was derailed. Witness was watching them all the time because they were on the same side of the track that witness was on. The foreman, Lenox, testified that he supposed he could see the right-of-way ahead of him as well as witness Bailey could.

There was testimony to the effect that sheep ran through the fence wherever they came to it near the place of the accident; that the posts were rotten and many of them were lying on the ground; that the company, through its section foreman, had been notified of this condition and requested to repair the fences, but that it failed to do so.

The court submitted the issue of the alleged negligence of appellants' employees in operating the car in instructions to which no objections have been urged here.

The court also gave instructions, to which appellants duly saved exceptions, telling the jury, in effect, that if appellants had not used ordinary care in maintaining the right-of-way fence and such negligence was a contributing cause of the injury, that appellee would not be chargeable with contributory negligence. And also instructed the jury that it was the duty of the company to keep the fence in good repair under the statute, and that if the company failed to discharge its duty in that respect, which caused the injury to plaintiff, as the proximate result thereof, the company would be liable to him in damages.

The court refused appellants' prayer asking the court, in effect, to tell the jury that the appellants owed the appellee no duty to keep the right-of-way fenced or to keep it in repair, and that if appellee was injured by reason of such failure on the part of the appellants he would still have no right of action. Appellants duly excepted to this ruling of the court.

From a judgment in favor of appellee this appeal has been duly prosecuted.

Judgment affirmed.

W. B Smith, H. M. Trieber and J. Merrick Moore, for appellant.

1. There was sufficient evidence to go to the jury to the effect that the accident was caused by the negligence of appellant in operating the car. 98 Ark. 202. Nor is there, as between co-employees any presumption of negligence. 74 Ark. 19; 98 Id. 19.

2. There is no law in this State for the protection of employees requiring appellants to fence their right-of-way. Act 165, Acts 1905. There was at common law no obligation upon railroads to fence their tracks for the protection of employees. 187 F. 393. See 55 A. 778; 15 S.W. 805; 160 F. 260-3. Statutes imposing burdens are strictly construed. Suth. on Stat. Const., § 290; 71 Ark. 561. The case should be reversed and dismissed.

Festus O. Butt, for appellee.

1. The peril was discovered in ample time to avert the accident.

2. The fence law of 1905 is for the protection of persons. 15 S.W. 805, overruled in 143 S.W. 252; 48 Id. 168; 77 Id. 440; 60 F. 370; 111 U.S. 228; 172 Ill. 379. These fence laws give a right of action to an employee or passenger. 45 Mich. 74; 50 Ill. 151; 23 Wisc. 186; 54 Cal. 418; 13 Ill. 548; 64 N.Y. 524; 29 Md. 252; 124 Mass. 158; 119 N.W. 468; 62 Wisc. 411; 60 Mo. 475; 68 Id. 56 76 Id. 286; 79 Id. 349; 111 N.W. 279.

OPINION

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

Appellants contend that there is no basis in the evidence for submitting to the jury the issue as to whether or not the appellants' foreman, in charge of the operation of the motor car, was negligent. Giving the evidence its strongest probative force in favor of the appellee, the jury were warranted in finding that the car, at the time of the injury, was being propelled by the motorman under the directions of the foreman, Lenox; that the motorman would not have started up...