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

• Decision Date: 25 May 1889
• Citation: 11 S.W. 699
• Parties: ST. LOUIS, I. M. & S. RY. CO <I>v.</I> RICE.
• Court: Arkansas Supreme Court

11 S.W. 699

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

v. RICE.

Supreme Court of Arkansas.

May 25, 1889.

Appeal from circuit court, Nevada county; C. E. MITCHELL, Judge.

Dodge & Johnson, for appellant. Scott & Jones, for appellee.

SANDELS, J.

In attempting to couple cars in the yard of appellant at Texarkana the appellee's hand was seriously injured. He sued appellant for damages. Defendant denied negligence on its part, and alleged that negligence on the part of plaintiff caused the injury. The evidence disclosed the following facts: That Rice for 12 years prior to the date of injury had been in the employ of railroads as brakeman and yard-foreman. Coupling cars was one of his duties. At the time of the injury he was night yard-foreman, and went to the yard about 5 o'clock P. M. The day yard-foreman informed him that a car marked "1130 Way," was to go out to Texas next morning. This car had just come in. About 7:30 o'clock that evening Rice got some cars from another track, and proceeded to couple them to the car "1130 Way." He went between the standing and the approaching cars, and noticed the position of the draw-heads of both. That of the standing car (1130) was one and a half or two inches lower than it should have been. He tried to take the link from the draw-head of the standing car, but found it fast. He then took the link from the draw-head of the approaching car. He says he saw that he could not enter the link into the draw-head of the approaching car, with the play it had, without straining the link. He thought that by using a little extra force he could raise the link, and make the coupling. The link used was a straight one. He did not use a crooked link, because he thought he could make the coupling with the link fastened in the standing car. The weight of the draw-head, is about 200 pounds. He tried to lift up the link fastened in the depressed draw-head, and his hand was caught and injured. It is customary to have link in moving car; it is considered safer. The cause of the depression of the draw-head of the standing car was the depression of the carrying iron. It is a common thing to make couplings of cars of uneven draw-heads. The railroad company issued to employés, and to plaintiff among others, a time-card, with its rules and regulations printed on the back. Of these printed regulations, rule 23 is as follows: "Great care must be used in coupling and uncoupling cars. Do not go between the cars unless they are moving at a slow and safe speed, nor attempt to make any coupling unless the draw-head and other coupling appliances are known to be in good order." The published rules of the company do not require employés to make couplings between cars where one draw-head is lower than another, with straight links, or when the draw-heads are defective. It was the business of the plaintiff Rice, as yard-foreman, to couple and uncouple cars, make up outgoing trains, and to move cars marked "B. O." (bad order) to the repair tracks. As at this yard the railroad company had a night and a day foreman, so it had its night and day inspector. Plaintiff did not know that the car "1130 Way" had been inspected, but says. "I suppose this car was inspected. They always are." It was the duty of the yard-inspector to inspect all cars immediately on arrival at the yard. If he finds a trifling defect it his duty to repair it; if a serious one, he marks it "B. O.," and the yard-foreman then moves the injured car to the repair tracks. He carries a wire, upon which nuts of all sizes are strung. The yard-master had supervision and control of the whole yard, and those employed therein. The distance between the point to which a coupling link may be raised, and that to which it may be depressed, is six or seven inches. The court, among other instructions, gave to the jury the following: "The jury are instructed that the duty which defendant owed to its employés, to exercise ordinary care and prudence in furnishing them safe appliances with which to perform the service intrusted to them, and to keep said appliances in good repair, as explained in the above instruction, cannot be delegated to an agent or servant of defendant so as to relieve defendant from responsibility. The defendant may not be able to perform this duty in person, but he must see that some one discharges it faithfully for him. He cannot shirk the responsibility. The law casts upon him certain duties to perform, and, if he deputes them to another, the latter, as to these duties, is not a fellow-servant with the other employés, but stands in the master's place, and his negligence is the negligence of the master. It is not material what the rank of the servant or agent is, if he is deputed to perform a duty which the employer owes to his employés, the employer is deemed to be present, and is responsible for the manner in which it is performed. So, in this case, if the jury find from the evidence that the plaintiff, while in the usual course of his employment as yard-foreman, as is alleged in the complaint, and without negligence on his part, was injured while coupling cars on the defendant's road, or in the yards of the defendant in Texarkana, Ark., by reason of a defective draw-head or other defective appliances on one of such cars, and such injury was caused by the negligence of a servant of the defendant, whose duty it was to inspect said car and the draw-heads attached thereto, and to mark such cars as defective or unsafe, and in certain instances to repair such defects, and the injury was caused by a defect in such car or its appliances, which under the rules and regulations of defendant it was the duty of said servants to have repaired, then the jury are instructed that the negligence of such servants was the negligence of defendant, and their verdict may be for the plaintiff, unless they further find that such servant and plaintiff were at the time of such accident fellow-servants of defendant, engaged in the same common employment, or that plaintiff was guilty of contributory negligence which was the proximate cause of the injury." The defendant asked the following instruction, which was refused: "If the jury find from the evidence that the said car upon which the draw-head was by which the plaintiff claims to have been injured was inspected, or should have been inspected, at Texarkana, before the plaintiff attempted to couple the same, and that through the negligence of said car inspector, the defects in the draw-head, if there were any, were not discovered, the court tells you that the plaintiff cannot recover for any neglect or carelessness on the part of the car inspector, either in not inspecting said car, or in failing to discover said defect, for the reason that said car inspector was said plaintiff's fellow-servant, and you must find for the defendant." The jury returned a verdict for plaintiff for $6,500.

The first ground for new trial presented by defendant was that the verdict was contrary to law and the evidence. In support of this it is urged that the undisputed facts show the plaintiff to have so contributed to the happening of the injury as to preclude his recovery in this action. Upon the part of appellee it is argued that this question was fully and fairly submitted to the jury, upon proper instructions; and that where there is any evidence to sustain a verdict this court will not disturb it. It is the settled policy of this court to uphold the verdicts of juries where they have passed upon disputed matters of fact, provided the evidence be legally sufficient to support their findings. Of this it is clearly the province of the court to judge, as decided in Clark v. Hare, 39 Ark. 258. The rule which precludes a plaintiff from recovery for an injury received on account of his own negligence must be considered in determining the legal sufficiency of that evidence here to warrant the verdict. "Contributory negligence consists in such acts or omissions on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with the negligent acts of the defendant, are a proximate cause...