St. Louis, I. M. & S. Ry. Co. v. Rogers

• Citation: 126 S.W. 375
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. ROGERS.
• Decision Date: 14 February 1910
• Court: Supreme Court of Arkansas

Page 375

126 S.W. 375

ST. LOUIS, I. M. & S. RY. CO. v. ROGERS.

Supreme Court of Arkansas.

February 14, 1910.

Appeal from Circuit Court, White County; Hance N. Hutton, Judge.

Action by Clyde Rogers against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Kinsworthy & Phaton, S. D. Campbell, P. R. Andrews, and Jas. H. Stevenson, for appellant. Smith & Blackford and Brundidge & Neelly, for appellee.

McCULLOCH, C. J.

Plaintiff, Clyde Rogers, recovered judgment against the railway company for damages in the sum of $25,000 as compensation for personal injuries received while working for the company as brakeman on a freight train. In attempting to mount a moving box car, the stirrup or step into which he placed his foot on the side of the car turned, his foothold gave way, and he fell under the wheels, and both legs were so badly crushed that they had to be amputated. This occurred at Tuckerman, Ark., about nightfall, or between sundown and dark. Some of the witnesses say it was still light enough to see, but that lanterns were lighted. The train was north-bound, and had taken a siding to allow a south-bound train to pass. After the south-bound train had passed on the main line, the head brakeman opened the switch and the engineer started the train forward, when a drawhead on the rear end of a car pulled out and broke apart. This was car marked "W. of A. 1551." Part of the drawbar and coupling fell down on the track between the rails, and, when this was discovered, plaintiff and the conductor went to the place and endeavored to throw the pieces off the track so as to free the track of the obstruction, but they found them too heavy to handle. While they were working at this, it was decided to set the broken car out of the train and leave it on the side track, and the engine with 14 cars attached — car marked "W. of A. 1551" being the rear one — pulled forward out of the siding and backed down the other track with this car in front; the broken end being forward. As the backing cars came down the other track and approached within a few feet of where plaintiff and the conductor were working to remove the broken pieces, the conductor directed plaintiff to get on this car, and help set it out. Plaintiff attempted to obey, and as he mounted the car the stirrup turned when he placed his foot in it, his handhold also loosened, and he fell under the wheels.

The stirrups are of iron and are made to hang down under the side of the car, near the end, and are bolted to the sills. On examination of this stirrup a day or two later it was found that the bolt in one end was missing, so that the stirrup was held only by the bolt in the other end, which had also slipped down about an inch. The sills to which it was bolted were old and rotten, and made of wind-shaken timber, and there was a split where the bolt went through which appeared to be old. Some of the witnesses said that the stirrup swung down under the side of the car without anything apparently wrong with it to ordinary observation, but that, when touched, it would swing around on the one bolt under the side of the car. Others said it was slightly bent, and that one end hung around under the car. There was no evidence given by any witness to the effect that the stirrup was observed before the accident to be out of repair, or that to ordinary observation it appeared to be out of repair. Plaintiff testified that he had not noticed anything wrong with it. He stated that, when he attempted to mount the car, it appeared to be all right, the stirrup was in its usual place, and that he looked at it when he ran to get on the car. He said that the first he knew of anything being wrong with the stirrup was when it gave way beneath his foot. A car inspector for the company testified that he inspected this car, as well as all the others in the train, at Baring Cross, and that the car was in good condition and free from defects.

Defendant put in evidence, from the standard book of rules, two covering the duties of brakemen, as follows:

"Rule 400. While on the train, brakemen are under the directions of the conductor. It is their duty to attend to the brakes, be provided with, take care of and properly display train signals and danger signals, assist the conductor in loading and unloading freight, in inspecting cars and in all things necessary to the lighting, heating and ventilation of the cars; open and close the car doors and assist the conductor in the proper disposition of passengers and in preventing them from riding on the platform or in any wise violating the regulations provided for their safety in preserving order and in all things requisite for the comfort of the passengers.

"Rule 401. Trainmen must examine and know for themselves that the brake shafts and attachments, ladders, running boards, steps, handholds and other parts and mechanical appliances, which they are to use, are in proper condition; if not, report them to the proper authorities, that they may be put in order before using."

The conductor, Mr. Parker, who was introduced by defendant as a witness, testified that the common interpretation of these rules is that brakemen are required to look around the train to see if anything is the matter, but that a brakeman would not be required to make a thorough examination like a car inspector. Quoting further his testimony, he stated: "It is a general inspection of conductors and also of brakemen looking over the train for such defects as they may find. A man would not have to grab a hold of every piece. It is the duty of the inspector to do that, as I understand. They have a car inspector at Argenta, and that is the last place the car inspector could have looked at it. It is the business of the car inspectors, as I understand it, to make an examination for hidden defects." This testimony was not contradicted.

It is, in the first place, insisted that there is not sufficient evidence to show that there was a defect in the car when it started on the trip, nor to sustain a charge against defendant for failing to discover the defect if any existed; in other words, that there was no defect which defendant by the exercise of ordinary care could have discovered at the time of the inspection, when the train started on the trip. We think there was sufficient evidence, however, to sustain that charge. Some of the witnesses who examined the car shortly after the accident testified that the stirrup was loose, that the sills to which it was bolted were old and made out of wind-shaken timber, and that there was an old crack where the bolts went through. The evidence also warranted a conclusion that these defects in the stirrup and the sill to which it was bolted were not attributable to the pulling out of the drawbar when the train broke in two. Now, if this condition existed as testified by the witnesses, it justified a finding that the defects could, by the exercise of ordinary care on the part of the car inspector, have been discovered when the inspection was made at Baring Cross, and that he was guilty of negligence in failing to discover them. St. L. & S. F. R. R. Co. v. Wells, 82 Ark. 372, 101 S. W. 738; K. C. S. Ry. Co. v. Henrie, 87 Ark. 443, 112 S. W. 967; St. L., I. M. & S. Ry. Co. v. Holmes, 88 Ark. 181, 114 S. W. 221. It was the duty of defendant, through its car inspector, to search for hidden defects. This is a part of the master's duty to exercise ordinary care and diligence to furnish its servants with reasonably safe appliances with which to work, and to keep them in reasonable state of repair. Railway Co. v. Rice, 51 Ark. 467, 11 S. W. 699; St. L., I. M. & S. Ry. Co. v. Holmes, supra.

Counsel argue that, if there was a defect which the inspector could have discovered, it was equally open to the observation of the brakeman, and that he should not have been permitted to recover because he, too, failed to discover it. This does not follow; for the duties of the master and of the servant are not the same. It was the duty of the master, through its inspector, to search for hidden defects, while the servant is required only to take notice of such defects as are open to ordinary observation. Railway Co. v. Leverett, 48 Ark. 333, 3 S. W. 50, 3 Am. St. Rep. 230. Nothing in the rules of the company as interpreted in the light of the evidence introduced in this case imposed any greater obligation on the part of the servant or any less on the part of the master. The evidence justified the belief that the master failed to discharge its duty. It does not show that the servant failed to exercise ordinary care for his own safety.

But it is claimed that plaintiff assumed the risk of danger of the defective stirrup, and that, on this account, he should not be permitted to recover. The second instruction given at appellee's request omitted any mention of the question of assumed risk, and authorized the jury to find for plaintiff upon the facts stated therein without considering that question. It was specifically objected to on that ground, and the ruling of the court is assigned as error. Was there any evidence that the plaintiff assumed the risk except under the general contract of employment?

The question of contributory negligence was, as will presently be shown, submitted to the jury, on correct instructions. The controlling principles of this branch of the case were stated in a recent case as follows: "An employé, by his contract of service, impliedly agrees to assume and bear the risk of all dangers from the ordinary incidents of the service, but these do not include the dangers arising from negligent acts of his employer, unless, after he becomes aware of such negligence and appreciates the danger arising therefrom, he exposes himself to it by continuing in the service. * * * But it is not correct to say that an employé assumes the risk of danger arising from negligent acts of his employer...