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

• Court: Arkansas Supreme Court
• Writing for the Court: Wood
• Citation: St. Louis, I. M. & S. Ry. Co. v. Holman, 120 S.W. 146, 90 Ark. 555 (Ark. 1909)
• Decision Date: 31 May 1909
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HOLMAN.

120 S.W. 146

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

Supreme Court of Arkansas.

May 31, 1909.

Appeal from Circuit Court, Clark County; Jacob M. Carter, Judge.

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

The instructions numbered 2, 3, and 4, given for plaintiff, referred to in the opinion, are as follows:

"(2) Employés of railroad companies assume all the risks ordinarily incident to the work they undertake to perform, but not the risks of failures of such companies to perform their duty; nor is it their duty to make inspection or examination to discover any latent defective or dangerous conditions arising from any failure of their employers to discharge their duty. They have the right to assume that such duties have been faithfully performed, and to act on the assumption until they have knowledge or notice to the contrary.

"(3) When an employé of a railroad company has notice or knowledge that his employer has failed to perform his duty of exercising reasonable and ordinary care looking to the safety of the employé in the performance of his work, the employé assumes the risks arising from such failure, if he continues on in his work; but if the employer, or his agent whose duty it is to keep it in repair, tells him that he will repair the defect arising from such failure, then the employé does not assume the risks of injury therefrom, unless the danger is so obvious, patent, glaring, or manifest that no person of ordinary prudence would have continued in the work in reliance on such promise, unless he so continue an unreasonable time after the promise.

"(4) If you find from the evidence that the deceased knew that said appliance for opening and closing the switch was broken and defective so that it could not be locked, and that it was not locked and had not been for some time, still if you should further find from the evidence that the deceased complained to the section foreman whose duty it was to repair such defects, and that the said section foreman advised the deceased that application had been made by him to the defendant for a new appliance for said switch that could be locked, and that same would be put on said switch as soon as the appliance could be gotten there by the defendant, and that thereafter, relying upon such promise, the deceased continued work in the employment of the defendant, and that the danger arising from the condition of said switch appliance was not so obvious, imminent, or glaring that an ordinarily prudent person would not have continued in the same work, then it is for you to say, under all the facts and circumstances of the case, whether the deceased did in fact assume the risk arising from the said condition of said switch appliance."

Instruction No. 5, given for defendant, is as follows:

"(5) You are instructed that, while it is not the duty of the employé using dangerous machinery furnished by the master to inspect the same for latent and hidden defects, the law does not require him to take notice of any defect of the same which is patent or obvious and that can be discovered by ordinary observation. He cannot go blindly ahead regardless of the consequences, but he must use his eyes and make such inspection as ordinary care would require of one whose duty it is to take notice of obvious defects."

John Holman was a locomotive engineer in the employ of appellant. On the 12th day of January, 1908, he was on an engine that was pulling a freight train on appellant's railroad from El Dorado and Camden to Gurdon. About a half or three-quarters of a mile south of Gurdon, a switch connected a side track with the main line. Holman's engine ran into this switch, which was open. On the side track about 400 feet from where the engine entered the switch were freight cars. Holman seeing that a collision was inevitable, after doing all he could to stop his engine, jumped therefrom and received injuries from which he suffered greatly until January 21, 1908, when he died. A rule of the company required engineers to keep their engines under control while in the yard limits. Holman when he entered the switch was within the yard limits, and he had his engine under control. There was no light at the switch, and the switch was unlocked. It was the duty of the railway company to keep lights at the switch and to keep the same locked. The lights revealed the condition of the switch, and the lock on the switch prevented it from being opened except when required. This condition had existed at the switch for some months. Holman's engine ran into the open switch about half past 9 o'clock at night. There was a coal oil light on the engine furnished by the company, but the light from this was not sufficient to enable him to see that the switch was open. Holman was 42 years old and a married man. His wife and several children survived him. All of the children were in their teens, some of them quite young. Holman was an affectionate husband and father, devoted to his family. He was moral and of frugal and industrious habits. He earned from $150 to $200 per month and contributed monthly to the family about $110 or $115. His widow, as administratrix, sued the appellant for damages for the benefit of the estate, and also in a separate count sued for damages for herself and children. The complaint alleged that appellant was negligent in failing to keep a light at the switch stand, and negligent in failing to keep the switch closed except when it was necessary to transfer cars to it from the branch line, and that appellant was also negligent in permitting freight cars to be on the side track without any light to indicate where they were situated. The appellant's answer denied all the material allegations of the complaint and charged contributory negligence on the part of Holman, in that he knew of the condition of the switch and in failing to keep his engine under control while running within yard limits at Gurdon, thereby violating the rules and regulations of the defendant. It further alleges that he was guilty of contributory negligence in jumping from his engine at the time he did, and that if he had remained thereon he would not have been injured.

Stephens, one of the brakemen who was a witness on behalf of appellant, testified, in part, as follows: "That he knows the switch where the injury occurred, and thinks the lock was there, but that the staple had been broken out so that it could not be locked. That it had been in that condition four or five months, and Mr. Holman knew it, because he (witness) told him about it once. That he told him it could not be locked. That he was on the engine with Mr. Holman one day and said to him that that switch ought to be fixed, that there was no staple in there, and it could not be locked, and that it was dangerous to go in there over it at night, and that Mr. Holman replied that it certainly ought to be fixed. That this conversation occurred one day — he does not know just when — as they were pulling out of Gurdon, when they were about a mile south of the town. That he told him about it because he thought it was his duty, as he knew it was dangerous, and thought probably by telling him that he might have it fixed. That he knew it was the duty of the section foreman, Oscar Bell, to have it fixed. That he didn't tell him because he didn't see him at that time, although he had known of the condition of the lock for four or five months. That he does not remember how long it was after he discovered there was no lock before he told Mr. Holman, but thinks probably it was three or four weeks before he was hurt that he told him. That he had seen Oscar Bell, the section foreman, frequently during this time, but only when his train was in motion."

Oscar Bell, the section foreman, testified, among other things, as follows: That he knows the switch where Mr. Holman was hurt, and knows there was no lock on it when the injury occurred. That for about four months the lock had been hanging there, but the staple had been pulled out so that it could not be locked. That Holman knew of this condition because, he had said to witness: "Oscar, there ought to be a lock put on that switch — south switch. That is dangerous that way." That he (witness) told him that he knew it was dangerous, and that the road master had told him he would furnish him something to repair it with. That Holman mentioned it first, but did not say how long he had known of the condition of the lock. That he was hurt in January, and this conversation took place about three or four months before. That the first thing he remembers Mr. Holman saying was that there ought to be a lock on the south switch, that it was dangerous. That he knows it was broken because he had seen it, but does not know how long before this conversation — thinks probably only a few days. That it was not exactly his business to fix this, as there was a yard gang supposed to attend to it. That Mr. Wood and Mr. Wall, both road masters at Gurdon, had agreed to furnish a lever to have this fixed. That it was his duty to fix it if he was furnished with something to repair it with. That his duty as section foreman was to keep the tracks in order, which was done by going over them every day. That he told Mr. Holman that, as soon as the road master furnished him (Bell) with a lever to put the lock on, he would lock it. That he had fixed the switch, but not until after the injury. The above witness was asked, for the purpose of laying the foundation for impeaching him, the following question: "Did you at Mrs. Holman's house in Gurdon, Ark., on or about the 10th day of August, tell her that John H. Holman just a few days before he was injured told you that the lock was broke, and that there was no lock on that switch, and that it ought to be fixed, and that you said, that you told him, that the road master had promised to...