St. Louis, I. M. & S. R. Co. v. Holmes

• Decision Date: 23 November 1908
• Citation: 114 S.W. 221
• Parties: ST. LOUIS, I. M. & S. R. CO. v. HOLMES.
• Court: Arkansas Supreme Court

114 S.W. 221

ST. LOUIS, I. M. & S. R. CO. v. HOLMES.

Supreme Court of Arkansas.

November 23, 1908.

Appeal from Circuit Court, Independence County; Frederick D. Fulkerson, Judge.

Action by Paul A. Holmes against the St. Louis, Iron Mountain & Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

T. M. Mehaffy, J. E. William, and J. H. Stevenson, for appellant. Oldfield & Cole, for appellee.

McCULLOCH, J.

This is an action instituted by appellee against appellant railway company to recover damages for personal injuries alleged to have been received while working for appellant as brakeman. He alleges that he was a minor at the time of his injury, as well as at the time when he subsequently executed a release to appellant, and as the jury found this to be true, we must treat it as an established fact, though the testimony on the point is conflicting. It is alleged in the complaint and the evidence tended to show that appellee was working as a brakeman on one of appellant's freight trains, and was attempting, while the train was running, to climb up on a freight car for the purpose of setting brakes when a handhold, or grab iron as it is called, which he grasped on the side of the car gave way and pulled off, causing him to fall to the ground. Negligence of appellant is alleged in permitting the grab iron to become insecure, and in failing to inspect the car and discover its insecure condition. The evidence was sufficient to sustain a finding that the grab iron was defective and insecure, and that the defect could have been discovered by proper inspection. One end of the grab iron came loose at the time of the injury to appellee. It was found that the tap was off the bolt which should have held the loose end, and that the bolt had a string wrapped around the threads on the end of it, thus establishing the fact that there was no tap on the bolt when it came loose. This showed that there was a defect which might have been discovered by proper inspection. St. L. & S. F. R. Co. v. Wells, 82 Ark. 372, 101 S. W. 738. The defective car was taken into the train at Newport where car inspectors were kept on duty. The rules of the company required inspectors to see that freight cars were in good running order, and fully supplied with proper appliances, etc. It is insisted that the inspector was a fellow servant with appellee, a brakeman, and that no recovery can be had on account of the former's negligence. Under the statutes of this state in force at the time of the injury complained of, as construed by this court, a brakeman and a car inspector were not fellow servants. K. C., Ft. S. & M. R. Co. v. Becker, 67 Ark. 1, 53 S. W. 406, 46 L. R. A. 814, 77 Am. St. Rep. 78; St. L., I. M. & S. R. Co. v. Dupree, 84 Ark. 377, 105 S. W. 878, 120 Am. St. Rep. 74. The complaint alleges that appellee was duly employed by appellant as brakeman on the road, and the answer contains no denial of this allegation. On the contrary, it is claimed in the answer as a defense that appellee assumed the risk of danger incident to his employment, and that, by his "own negligence and inattention to his duty as an employé of defendant," he contributed to his own injury. During the progress of the trial appellant drew out from appellee on cross-examination that he had never made written application in the regular way for employment, but had been employed by a conductor on the road to act as brakeman. Appellant then attempted to show that a conductor had no authority to employ brakemen, and to rebut this appellee introduced testimony tending to show that the conductor had authority to employ him, and that he had been working for appellant for some time as brakeman pursuant to this employment. After the introduction of evidence was concluded appellant's counsel asked permission of the court to amend the answer so as to insert a denial that appellee was employed by appellant, and that the conductor had authority to employ him. The court refused to permit the amendment to be made. Appellant also requested the giving of instructions, which the court refused, defining the duty of appellant to appellee if he was not employed. These rulings are assigned as error.

When testimony is introduced, without objection, upon an issue not specifically raised by the pleadings, the court should treat the pleadings as amended so as to correspond with the proof, or may permit an amendment of the pleadings to be made. Sorrels v. Self, 43 Ark. 451; Davis v. Goodman, 62 Ark. 262, 35 S. W. 231; Nicklace v. Dickerson, 65 Ark. 422, 46 S. W. 945; Roach v. Richardson, 84 Ark. 37, 104 S. W. 538; Wrought Iron Range Co. v. Young, 85 Ark. 217, 107 S. W. 674. The proof must, however, be confined to the issues raised by the pleadings but, when objection is made to the introduction of testimony not in support of an issue properly raised, the court may, in the exercise of its discretion, permit an amendment to be made. This court will not disturb a ruling of the trial court in this respect unless an abuse of discretion is shown which prejudiced substantial rights of the appellant. Kempner v. Dooley, 60 Ark. 526, 31 S. W. 145; Mooney v. Tyler, 68 Ark. 315, 57 S. W. 1105; Railway v. Dodd, 59 Ark. 317, 27 S. W. 227; Bloch Queensware Co. v. Metzger, 70 Ark. 232, 65 S. W. 929. Appellee objected to the introduction of certain evidence tending to show that the conductor was not authorized to employ him in appellant's service, and also objected to the offered amendment to the pleadings, as well as the instructions requested by appellant on that issue. These were appropriate and timely objections to the bringing in of the new issue as to appellee's employment in the service of appellant, and we cannot say that the court abused its discretion in sustaining the objections, and in refusing to permit the amendment to be made at that stage of the proceedings. We do not overlook the decisions of this court reversing trial courts for refusing to allow amendments to pleadings during the progress of trials. McMurray v. Boyd, 58 Ark. 504, 25 S. W. 505; Southern Insurance Co. v. Hastings, 64 Ark. 253, 41 S. W. 1093. But each case must be judged according to its peculiar...