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

• Decision Date: 19 March 1898
• Citation: 45 S.W. 56
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. RICKMAN.
• Court: Arkansas Supreme Court

45 S.W. 56

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

Supreme Court of Arkansas.

March 19, 1898.

Appeal from circuit court, Woodruff county; Hance N. Hutton, Judge.

Action by S. R. Rickman against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Dodge & Johnson, for appellant. Grant Green, Jr., John T. Hicks, and W. B. Smith, for appellee.

BUNN, C. J.

This is a suit for personal damages, by Rickman against the railroad company. Damages laid at $20,000; judgment for $1,500; and defendant appealed.

Plaintiff was a section hand, under the control of one McDougal, as foreman. On the 28th January, 1895, some time about or just after nightfall, it being a cold, snowy, and dark night, McDougal, with plaintiff and three other section hands and a citizen, after quitting work for the day, left Russell station on a hand car, to go to their station house at Bald Knob, a short distance south of Russell, on the railroad. While at Russell they could see the headlight of an engine at Bald Knob, and a train was due to pass up about that time. It was suggested by one of the hands that they had better wait until the coming train should pass, but the foreman said "No," that the engine whose light was then in view was standing at Bald Knob, on a side track. And so, boarding the hand car, they started for Bald Knob. It pretty soon became evident that the train from Bald Knob was approaching, and another of the hands suggested that they had better stop, and take off the hand car at the next crossing, which they were about then to arrive at. The foreman said, "No, we will go to the next crossing, and then get off." But, before they reached the next crossing, the coming train had approached so near that the foreman ordered them to slow up, and get off, and take the hand car off, or words to that effect. This was all done hurriedly. The foreman stood a little way from the hand car, directing the hands to take it off quick. One of them fell, and plaintiff took his place, in the effort to lift the car off. At this juncture the approaching engine struck the hand car, knocked it off, and broke the leg of plaintiff, who did not let go of the car in time to save himself, as the others did.

Under recent statutes (Sand. & H. Dig. §§ 6248, 6249), a foreman of a section gang is not a fellow servant of the men belonging to the gang under him, for the reason that they are under his control and direction in...