St. Louis, I. M. & S. Ry. Co. v. Jacks
| Decision Date | 18 November 1912 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. JACKS. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Desha County; Antonio B. Grace, Judge.
Action by J. J. Jacks, administrator of Elkins Jacks, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
The following is instruction No. 7 given by the court: "In passing upon the question of contributory negligence on the part of the deceased, and of assumed risk, you must take into consideration his age, experience, intelligence, and means of knowledge; and after considering these matters, if you believe from the evidence that the deceased, on account of his youth or inexperience, did not know or fully realize and appreciate the danger incident to the act or employment in which he was engaged at the time of the injury complained of, then you cannot hold him guilty of contributory negligence, nor can he be held to have assumed the risk, unless the danger of doing whatever he is shown to have done was, at the time and under all the circumstances then existing, obvious and apparent to a person of his age, intelligence, and experience."
The court refused defendant's requested instructions 2 and 3, which merely requested the court to instruct the jury that the burden of proof in this case was upon the plaintiff to establish each and every material allegation of his complaint.
The court also refused defendant's requested instruction 7, as follows: "If you find from the evidence that the injury and death of plaintiff's intestate was due to a dangerous position assumed by him, and which was wholly unnecessary in the discharge of his duties connected with his employment, then plaintiff cannot recover, and your verdict should be for the defendant."
The court also refused defendant's requested instruction 10, as follows: "The court instructs the jury that the law does not presume negligence from the mere happening of the accident."
Elkins Jacks, a boy a little over 16 years of age, was in the employ of the appellant as clerk to its storekeeper at McGehee. The appellant was handling its supplies from two box cars. They were placed on its coach track, at McGehee station. The cars were in bad condition; one of them having the drawbar out, permitting the cars to come within six or eight inches of each other. There were doors in the ends of the two cars, so that one could pass from one car to the other. It was Jacks' duty to go in these cars and get out supplies for the employés who asked for them. It was his duty to go from one car to the other, and to stay around these cars. The appellant had been using these cars as a storeroom for four or five days, while its regular storeroom was being repaired. Jacks had been working there in the store one or two months. There was nothing between these storeroom cars and the end of the track. The way to protect them from being bumped into by other cars on the track was to place a blue flag in the center of the track some distance above them. The rule required that no train should go over the flag. The servant whose duty it was to place the flag did not look to see that morning whether the flag was there. There was no reason to suppose that the cars would be moved. They were placed on the coach track for the special purpose of a storeroom.
While the switch crew was making couplings at McGehee on the morning of September 12, 1910, the switch engine caused a collision to take place with the cars where young Jacks was engaged in the discharge of his duties, which caused his death. After the collision occurred, Jacks was observed with one foot in one car and the other foot in the other car, standing up. He had his head between the two cars. When the engine released the pressure from the cars, he fell forward into the car. There was a bolt projecting out of the end of one of the cars, about as high as a man's head, if he had been between the cars. This bolt was four or five inches from the door, and projected out about one inch. There was blood on the bolt. The base of Jacks' skull was fractured, and both of his ears were bleeding. The blow against his ears on both sides killed him, causing concussion of the brain. He died instantly.
His administrator brought suit against the appellant, alleging that it negligently permitted and caused its engine to go upon the track upon which the cars were standing and collide with the cars while Jacks was at work, without any kind of warning to Jacks of their approach, with such violence that he was thrown about and knocked against the said car, or some object or objects thereon or thereto attached, and thereby injured him in such manner that he soon thereafter died from the effect of such injuries. The suit was brought for the benefit of Jacks' father and mother. Appellee alleged that they were entitled to his earnings until he reached his majority, and that he would have continued to have contributed to their support thereafter. The appellant denied the allegations of the...
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