St. Louis, I. M. & S. Ry. Co. v. Webster
| Decision Date | 19 June 1911 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. WEBSTER. |
| Court | Arkansas Supreme Court |
For majority opinion, see 137 S. W. 1103.
First. The court should have given prayer for instruction No. 6 requested by appellant, which is as follows: "If the plaintiff knew that Bryant was not a point at which defendant kept an inspection, and plaintiff, either in entering or remaining in the service of the defendant, had assumed the duty of inspecting or seeing for himself at such a point that the grabirons on cars delivered there to defendant by another line were safe, and failed to do so, but attempted to use the grabiron without ascertaining whether it was safe or not, and fell and was injured, your verdict should be for the defendant." And the court should have refused instruction No. 5, given at the request of appellee, which reads:
This ruling of the court in refusing prayer No. 6 for appellant, and in giving prayer No. 5 for appellee, took away from the jury the question as to whether or not it was the duty of appellee, in the exercise of ordinary care for his own safety to have inspected the cars at Bryant Junction. The court, in other words, told the jury as matter of law that it was the duty of appellant to have made the inspection, and that such duty did not devolve upon appellee. Now, Mr. Murphy, superintendent for appellant on the Arkansas Division, testified as follows: He further testified that the Bauxite & Northern Railroad was "an entirely independent railroad," and it was operated as such between junctions with the Rock Island and appellant. The car on which Webster was injured was a Rock Island car. That was the system to which it belonged or with which it was affiliated, and the Bauxite & Northern connects with that railroad, as well as with the Iron Mountain. The Bauxite & Northern has no cars of its own. It runs from the Iron Mountain and the Rock Island out to the mines for the purpose of getting the ore. Witness McDonald testified that "there is a little independent railroad that juts out there a mile and a half from Bryant, the Bauxite & Northern." He believed that this independent railroad had a connection with the Rock Island. He "knew there was no car inspector maintained at that junction." Witness Farrabee testified: He was conductor on the train from which Webster fell. Appellee himself testified about the existence of Bauxite and the Bauxite spur. He admitted that he knew of the existence of it. He had heard that appellant had built a spur out in order to get part of the stuff that had been going to the Rock Island, but knew nothing about who owned the property. He knew that there was no inspector at Bryant; had never seen any there; had always worked for companies that had car repairers to receive or reject them. He had been working on the local through Bauxite Junction for two months, and knew that no inspector was maintained. Appellee testified, in giving his explanation of the rules of the company requiring the trainmen to know that all grabirons, etc. were safe, that it was their duty to take notice of "all possible defects," and, proceeding, the following occurred:
The court could not withhold instructions appropriate to any theory of the cause sustained by competent evidence. Smith v. State, 50 Ark. 549, 8 S. W. 941. "It is error to refuse to give a specific instruction clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given, unless it appears that no prejudice has resulted." Western Coal & Mining Co. v. Moore, 131 S. W. 960. The court, in refusing prayer No. 6 for appellant, and in giving instruction No. 5 for appellee, absolutely ignored the above testimony, and treated the Bauxite & Northern as if it belonged to the appellant and was operated solely by appellant. It was a vital issue in the case as to whether the Bauxite & Northern was an independent railroad and operated as such; for, if it was, then it became the duty of appellee to make inspection of the cars for his own safety, and appellant owed him no duty whatever to make inspection for him. Although appellee testified that he did not know of this rule of the company requiring employés to make inspection of the cars for their own safety at junction points with other railroads, yet his own testimony shows that he had been working at Bauxite & Northern Junction with appellant for two months. He was a railroad employé of long experience. He knew that no inspector was maintained at Bryant Junction, his own testimony shows familiarity with the rules of the company as to the duty of employés to make inspection, and Mr. Murphy testified that it was understood that the employés were to make inspection for themselves at such points. It was, to say the least of it, a question for the jury under the above testimony which we have quoted from the record to say whether or not appellee knew that the Bauxite & Northern was an independent railroad, and whether or not it was the duty of appellee to make inspection of the car on which he was injured for his own safety. Conceding that there was evidence on the part of appellee to warrant the contrary conclusion, still appellant, under the law, certainly had the right to have its theory of the evidence as above set out presented to the jury, and it was impossible for it to have had a fair trial without it. It is palpable error to assume as an undisputed fact that appellant handled only the cars that it sent in to the mine. While witnesses say it handled the cars it sent in, none of them say that these were the only cars it handled, and the testimony quoted above tends to show that it might have handled cars that had been delivered to the Bauxite & Northern by the Rock Island. It was a Rock Island car, and appellant handled traffic from wherever it was received. The question was for the jury.
Second. The purported deposition of Dr. C. E. Bentley, and his deposition, considered as the deposition of Dr. Barlow, should have been suppressed. The deposition was not written or read in the presence of the witness. It was not signed by the witness. It was not sealed and mailed or delivered by the officer taking the same. It was not published by the clerk. There is no certificate of the officer showing that it was written in his presence, and no certificate showing that the signature of the witness to the purported deposition was waived. These are positive requirements of the statute, that cannot be waived, except by written agreement, signed by the attorneys representing the respective parties at the taking of the depositions, or by oral agreement about which there is no controversy. And as to waiver of the signature of the witness there could be no evidence introduced as to that, in the absence of the certificate of the officer before whom the deposition was taken showing that the signature of the witness had been waived.
(1) Where there has been no compliance with the requirements of the statute, and no written waiver thereof, and the attorneys differ upon the question as to whether or not there has been a waiver by oral agreement of such requirement, the trial court cannot determine the controversy by calling the attorneys to testify pro and con concerning it. The reason is obvious. The trial court must not be allowed to inaugurate a swearing match between the reputable attorneys that practice before it, in order to settle disputes of this kind. It cannot do so without bringing the administration of justice into contempt. The very decision that it must make between the attorneys, who are officers of the court and who are sworn to uphold the law, brings that law into disrepute. To illustrate by the record here: Frank Pace, attorney for the plaintiff, testified: ...
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