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

• Decision Date: 01 March 1909
• Citation: 117 S.W. 243
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BIRCH.
• Court: Arkansas Supreme Court

117 S.W. 243

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

Supreme Court of Arkansas.

March 1, 1909.

Appeal from Circuit Court, Hempstead County; J. M. Carter, Judge.

Personal injury action by Fred R. Birch against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. B. Kinsworthy, J. H. Stevenson, and Lewis Rhoton, for appellant. J. D. Conway and W. H. Arnold, for appellee.

McCULLOCH, C. J.

The plaintiff, F. R. Birch, while working for the defendant railway company as switchman in the company's yards at Hope, Ark., received personal injuries alleged to have been caused by negligent acts of defendant's servants, and he instituted the present action to recover damages for said injuries. A jury awarded him damages in the sum of $1,500, and the defendant appealed.

The injury occurred in the following manner: The plaintiff was foreman of a switch engine, and was engaged in switching some box cars loaded with blocks of wood consigned to a heading mill at Hope. The door of one of these cars was standing open, and as plaintiff, after having set the coupling on one end of the car, ran along beside the car for the purpose of going to the other end to uncouple it from another car, some of the blocks of wood fell out of the car door, and one of them struck him, inflicting a serious injury. He testified that the switch engine bumped against the car with unusual force, and caused the blocks to fall out of the car and strike him. Recovery is sought on the ground that it was necessary for the plaintiff to pass along beside the car in the discharge of his duties, and that the defendant was guilty of negligence in leaving the door of the loaded car standing open so that its contents could be jolted out. The testimony shows that the loaded car came into the yards of defendant over the Arkansas & Louisiana Railroad from Ozan, Ark. It was the duty of the plaintiff and his switch crew to move cars when directed by the yard clerk. There was a car inspector, whose duty it was to inspect cars, but there is evidence to the effect that it was not his duty to report the finding of open doors, but to report only defects in cars.

The court gave the following instruction at the request of plaintiff, which was objected to by defendant: "(1) In this case, if you find from a preponderance of the evidence that the car from which the timber fell which struck the plaintiff was received by the defendant and the doors of said car were open at the time said car was received and at the time the plaintiff undertook to remove the same, and that an ordinarily prudent person acting in the place of the railway company would have anticipated an injury to an employé like or similar to the one in this case, and if you further find that said injury was caused by a failure to keep the door closed or to close the same before or at the time the car was removed, then you may find for the plaintiff, if you further find that said plaintiff was acting with the care of an ordinarily...