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

• Decision Date: 10 May 1915
• Docket Number: (No. 375.)
• Citation: 176 S.W. 692
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. INGRAM.
• Court: Arkansas Supreme Court

176 S.W. 692

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

(No. 375.)

Supreme Court of Arkansas.

May 10, 1915.

Appeal from Circuit Court, Independence County; R. E. Jeffery, Judge.

Action by William Ingram against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

William Ingram sued the St. Louis, Iron Mountain & Southern Ry. Co. to recover damages for personal injuries sustained by him while helping to load some bridge timbers on a flat car. The facts are as follows: In February, 1914, E. T. Ross, a bridge foreman of the defendant company, with the plaintiff and others of his bridge crew, was engaged in removing some old guard rails from two bridges or trestles on defendant's line of road. The guard rails were made of 6×8 pine timbers, nine feet long, and were "dapped," that is, notched so that they fit down over the ties about two inches. When they were taken up the notched edges were trimmed down smooth so that the guard rails then were pieces of timber 4×8. There was a flat car standing on the side track near the trestle and the foreman directed his crew to take a push car and go down the side track about a quarter of a mile where some bridge piling lay and load the timber on the flat car. He directed them to use these guard rails as skids or running boards. The bridge crew loaded the push car with the piling and pushed the car down the track to where the flat car was placed. The members of the crew then took the guard rails and placed them between the push car and the flat car and rolled the piling over the skids from the push car onto the flat car. The first load was unloaded safely. When the second load was brought up on the push car the plaintiff was standing at the north end of the car. Some of the other members of the crew picked up two guard rails to be used as skids. While the second piece of piling was being rolled along the skids the south skid broke. The north skid then slipped off the push car and the piling fell, striking the plaintiff on the leg and breaking it. The foreman of the bridge crew said that he looked at the guard rails before the bridge crew used them for skids and that he did not discover any defects in them. A civil engineer, on behalf of the plaintiff, testified that pieces of piling of the dimensions stated by plaintiff's witnesses, which caused the guard rail to break, would weigh something over 500 pounds, and that sound pieces of pine of the dimensions of the guard rails would be able to sustain a weight several times that of the piling.

Other facts will be stated in the opinion. The court directed a verdict for the plaintiff, and the defendant has appealed.

E. B. Kinsworthy and Troy Pace, both of Little Rock, and McCaleb & Reeder, of Batesville, for appellant. Dene H. Coleman, of Batesville, and Jones & Campbell, of Newport, for appellee.

HART, J. (after stating the facts as above).

It is insisted by counsel for the defendant that the action should have been abated because there was another suit pending to recover damages for the same injury in the Jackson circuit court. The facts upon which this assignment of error is based are as follows: The plaintiff first instituted an action in the Jackson circuit court to recover damages for the injury, which is the foundation of the present action. The trial of the case was begun on September 23, 1914, and after a portion of plaintiff's testimony had been introduced by agreement of the parties the case was withdrawn from the jury and continued for the term. On the 3d day of October, 1914, the court adjourned until the 14th day of November, 1914, and on the 7th day of October, the plaintiff paid to the clerk of the Jackson circuit court the cost which had accrued in the action and the clerk entered of record a dismissal of the cause on motion of the plaintiff.

Section 6168 of Kirby's Digest provides that the plaintiff may dismiss any action in vacation in the office of the clerk on the payment of all costs that may have accrued therein. It is insisted by counsel for the defendant that the word "vacation" has a technical meaning, and means that period of time from the final adjournment of the court until its convening at the next term. We do not agree with counsel in this contention. Under section 6167 of the Digest the plaintiff may move the court to dismiss before final submission of the case to the jury. Where the case is dismissed in vacation in the office of the clerk it is proper for the clerk to enter an order of dismissal at the request of the plaintiff. Lyons v. Green, 68 Ark. 205, 56 S. W. 1075.

Under section 6167 of Kirby's Digest the action may be dismissed without prejudice by the plaintiff as a matter of right at any time before final submission of the cause; and after the cause has been submitted, in the interest of justice, the court may permit the plaintiff to withdraw the submission of his case and to take a nonsuit without prejudice. St. Louis Southwestern Ry. Co. v. White Sewing Machine Co., 69 Ark. 431, 64 S. W. 96.

The plaintiff having an absolute right to dismiss his case at any time before final submission to the court or jury trying the case, we think it is evident that the word "vacation" means any time when the court is not in session.

This suit was instituted under the Employers' Liability Act of March 8, 1911. See Acts of 1911, page 55. The first three sections of the act are as follows:

"Section 1. That every common carrier by railroad in this state, shall be liable for all damages to any persons suffering injury while he is employed by such carrier, or, in case of the death of such employé, to his or her personal or legal representative, for the benefit of the surviving widow or husband and children of such employé; if none, then to such employé's parents; if none, then to the next of kin of such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any insufficiency of clearance of obstructions, of strength of roadbed and tracks or structures, or machinery and equipment, of lights and signals in switching and terminal yards, or rules and regulations and of number of employés to perform the particular duties with safety to themselves and their coemployés, or of any other insufficiency; or by reason of any defect, which defect is due to its negligence in its cars, engines, motors, appliances, machinery, track, roadbed, boats, works, wharves or other equipment.

"Sec. 2. If the employé of any such common carrier shall receive any injury or shall be killed by reason of any defect in any car or cars, engines, motors, appliances, machinery, track, roadbed, works, wharves, or other equipment owned, operated or used by such common carrier, such common carrier shall be deemed to have had knowledge of such defect before and at the time such injury is sustained or death caused, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state brought by such employé or his or her personal or legal representative against any such common carrier for damages on account of such injuries so received or death so caused, the same shall be prima facie evidence of negligence on the part of such common carrier.

"Sec. 3. In all rights of action hereafter arising within or by virtue of this act or any provision of the same for personal injury to an employé, or where such an injury has resulted in his death, the fact that an employé may have been guilty of contributory negligence shall not bar a recovery; provided, that the negligence of such employé was of a lesser degree than the negligence of such common carrier, its officers, agents or employés; provided, further, that no such employé who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier, its officials, agents or employés, of any law enacted for the safety of employés or persons contributed to the injury or death of such employé, and such employé shall not be held to have assumed the risk of his employment in any action arising out of any of the provisions of this act."

It is first insisted by counsel for defendant that the statute is violative of section 1 of the Fourteenth Amendment to the Constitution of the United States in that it denies to the defendant the equal protection of the law, but we do not agree with them in that contention.

The Supreme Courts of Indiana and other states have sustained the constitutionality of somewhat similar acts by construing them as designed exclusively for the benefit of those who are, in the course of their employment, exposed to particular dangers incident to the use and operation of railroad engines and trains and whose injuries are caused thereby. See Indianapolis Traction & Terminal Co. v. Kinney, 171 Ind. 612, 85 N. E. 954, and 23 L. R. A. (N. S.) 711.

In the case of Louisville & Nashville R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921, also reported at 47 L. R. A. (N. S.) 84, the court held that the modification of the fellow servant rule as to railway employés, made by the Indiana act of 1893, did not offend against the equal protection of the laws clause of the federal Constitution because construed as applying to all employés doing work essential to enable the carrying on of railway operations, and not as limited to those engaged in or about the movement of trains, and that such general classification of railway employés was a proper exercise of the police power. Other decisions sustaining this view are cited in the case note.

The views expressed by the Supreme Court are in accord with the trend of our own decisions. See Ozan Lumber Co. v. Biddie, 87 Ark. 587, 113 S. W. 796; Aluminum...