St. Louis, I. M. & S. Ry. Co. v. De Lambert
| Decision Date | 24 April 1914 |
| Docket Number | (No. 266.) |
| Citation | 166 S.W. 544 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. DE LAMBERT. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Bradley County; H. W. Wells, Judge.
Action by Leslie F. De Lambert against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for a new trial.
E. B. Kinsworthy and T. D. Crawford, both of Little Rock, and Jas. C. Knox, of Monticello, for appellant. Jones & Owens, of Little Rock, and J. R. Wilson, of Monticello, for appellee.
This is an action to recover damages on account of personal injuries received by plaintiff while he was working as mechanic in the service of the defendant at McGehee, Ark. Plaintiff was working as repair man in and about the shops at McGehee. The particular line of work in which he was engaged at the time of his injury was that of repairing motor cars. It was his duty to repair the cars, and in doing so it was necessary to take them out on the railroad track to try them out to ascertain whether or not they were in working order. There was a branch line from McGehee to Arkansas City, on which there was only one train a day each way, and, according to the testimony, the instructions to plaintiff from his superior were to test the motor cars on that track. It was while he was engaged in this work that his injury occurred. On Sunday, July 14, 1912, he was at work on a motor car which was needed and which it was necessary for him to get in repair as speedily as possible. He took the car out on the track that morning, tested it, and found that it was not in satisfactory condition, and continued his work repairing it during the day. Late in the afternoon or early in the evening he got it in condition to test it again and took it out on the track for that purpose, waiting first for the train to leave McGehee for Arkansas City. He took several persons along with him to assist him in lifting the car off the track when it became necessary to turn around or in the event he met a train or a hand car or speeder. He left McGehee after dark, and after going out 1½ or 2 miles the motor car he was driving collided with a hand car coming from Arkansas City. He and his companions were thrown from the motor car, and he received serious injuries sufficient to warrant an assessment of damages in the amount awarded by the jury.
There is no controversy as to whether plaintiff was acting within the line of his duty in taking the car out on the track. But the testimony was sufficient to warrant the finding in his favor on that issue. The evidence is also sufficient to warrant the conclusion that he was not guilty of any negligence which contributed to his own injury, but that the collision resulted from negligence of those operating the hand car in running the car at a high speed without keeping a lookout or displaying a light. The right to recover damages from the company on account of the collision rests, if it exists at all, upon negligence of those in charge of the hand car and the company's responsibility for their act, for there is no liability if there was no negligence in the operation of the car or if the car was operated without the knowledge or consent of the company's servants.
It was the duty of plaintiff to exercise care for his own safety in watching out and avoiding trains and other cars, and, if there was no negligence in the operation of the hand car, then he cannot recover from the company, for the collision resulted from a danger the risk of which he assumed in undertaking to do the work.
The evidence is sufficient, as before stated, to establish negligence on the part of the persons who were operating the hand car; but there is, in our...
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