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

• Decision Date: 21 March 1891
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. DAVIS.
• Court: Arkansas Supreme Court

15 S.W. 895

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

Supreme Court of Arkansas.

March 21, 1891.

Appeal from circuit court, Pulaski county; J. W. MARTIN, Judge.

Action against a railroad company for causing the death of an employe. At plaintiff's request the court gave the following instructions: "(1) It was the duty of defendant to exercise reasonable care and prudence; to furnish and keep safe tools and appliances for its employes to use in carrying on its business of running trains; and if you believe from the evidence that defendant neglected to perform this duty, and that by reason thereof Davis, while in the performance of his duties as an employe of the defendant, was killed without fault or neglect on his part, contributing directly thereto, you must find for the plaintiff." "(3) Davis did not forfeit the right to recover for injuries, if any occurred by reason of defendant's neglect of duty, from merely using defective appliances, unless the defect was so apparent that a prudent man would not have continued in defendant's employ while such appliances were in use. Nor does the knowledge of Davis that open frogs were used excuse defendant, if such frogs were defective or improper appliances, and caused the injury, unless you believe that the defect was such as that it was known to Davis, or ought in the exercise of ordinary care to have been known to him, to be dangerous and unsafe to remain in defendant's employ while such frogs were used. (4) If the jury believe from the evidence that defendant furnished to Davis a defective draw-head and coupling-pin, and knew, or by reasonable diligence should have known, of such defect, and that by reason thereof, while in the performance of his duty as a brakeman of defendant, Davis was delayed in his efforts to uncouple the cars, and while so engaged, and in consequence of such delay, he, without negligence on his part, was caught in a frog and injured, and that he would not have been caught and injured if the coupling had not been defective, you must find for the plaintiff."

Dodge & Johnson, for appellant. Blackwood & Williams and Sam W. Williams, for appellee.

HEMINGWAY, J.

Whether the defendant would have promoted the safety of its operatives by substituting upon its road blocked for unblocked frogs, and whether its duty of reasonable care exacted this, are questions that cannot affect the result in this case. The plaintiff charges negligence in the use of unblocked frogs, not because they were badly constructed, out of repair, or exposed operatives to latent dangers, but because a different kind of frog would have been less dangerous to operatives. Unblocked frogs were in universal use on the roads in this state, including the entire road of the defendant. The injured employe knew when he entered the defendant's service that its frogs were unblocked, and if there was danger in their use he knew it was an incident to the service he was entering. When a master employs a servant to do a particular work, with a particular kind of implements or machine, he agrees that they are sound and fit for the purpose intended, so far as ordinary care and prudence can discover, but does not agree that they are free from danger in their use. The servant agrees to use, in the service, the particular kind of implements or machine, and, if under such circumstances harm comes to him, it must be ranked among the risks he assumed when he entered the service. Railroad Co. v. McCormick, 74 Ind. 447; McGinnis v. Bridge Co., 49 Mich. 466, 13 N. W. Rep. 819; Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. Rep. 358. Such is the express holding of the courts of Massachusetts, Illinois, and Kansas, in...