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

• Decision Date: 06 January 1906
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. CARAWAY.
• Court: Arkansas Supreme Court

91 S.W. 749

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

Supreme Court of Arkansas.

January 6, 1906.

Appeal from Circuit Court, Craighead County; Allen Hughes, Judge.

Action by T. H. Caraway, as administrator of the estate of H. A. Stephenson, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed conditionally.

B. S. Johnson, for appellant. J. F. Gautney, T. H. Caraway, and N. F. Lamb, for appellee.

McCULLOCH, J.

This is an action brought by the administrator of the estate of H. A. Stephenson, deceased, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for the alleged negligent killing by the train of defendant. Damages were laid in the sum of $25,000, and the jury returned a verdict in favor of the plaintiff for $2,000 to the estate for the pain and suffering endured by decedent after he was struck by the train and $8,000 for the benefit of the widow and child of decedent. Stephenson was employed by the railway company as brakeman on a through freight train; his run being between Little Rock, Ark., and Poplar Bluff, Mo. As his train came into the terminal yards near Little Rock about midnight, he was struck by a coal car standing on a side track, knocked to the ground, and run over by the cars of his train. From the injuries sustained he suffered great pain, and died a few days thereafter. The coal car had by other employés of the defendant in the yard been left so near the end of the side track on which it stood that sufficient space did not intervene between it and cars passing on the adjoining track, and Stephenson was struck by it while he was on the side of a box car of his own train. It is not contended that there was any error in the instructions or verdict as to the question of negligence of defendant's servants in leaving the coal car in the position named, or that the position of the coal car did not cause the injury complained of. So those questions may be treated as settled. It is only contended that Stephenson, in leaving his post of duty on top of his train and climbing down the side of the box car, was guilty of negligence which contributed to the injury, and that for that reason no recovery can be had. No one saw Stephenson when he was struck. He was the forward or head brakeman on the train, and one of the other brakeman on the train testified that he saw the swinging light from Stephenson's lantern just before he climbed down the side of the car. Both of the other brakemen testified that they heard his groans as their end of the train passed the spot where he had fallen, that they found him lying on the ground, and that he told them the coal car had knocked him off the side of the box car. They also testified that they saw the position of the coal car, and that it was close enough to strike a man on the side of a passing box car. There was no proof as to the purpose of Stephenson in climbing down the side of the car, except that it was the uniform custom of the brakemen, when they came into the yards at the end of a run, to get down from the train before it stopped, and wait for the caboose to come up, and then deposit their lanterns therein. The proof shows that the rules of the company required them to deposit their lanterns in the caboose before leaving the yards for their respective homes or stopping places.

Appellant, to establish contributory negligence on the part of Stephenson, introduced in evidence and relied solely upon the following rule of the company, viz.: "On freight trains having two brakemen it will be the duty of these men to ride on the top near the front and rear end of same, and the conductor in the center of the train approaching all meeting points, down or up grades, through stations and entering yards. On trains having three brakemen, the forward and rear brakeman will station themselves as above; the swing or middle brakeman will take a position near the middle of the train on top, in order to properly take signals from either end. The object of locating the trainmen as herein stated is in order to control the train when necessary or to assist in stopping or steadying the train when going down or up grade, and to change the brakes as frequently as is necessary to prevent heating wheels or sliding them flat. The use of a stick to set brakes is strictly prohibited. Conductors in charge of trains will instruct their men in regard to the above, and know that they occupy such positions. The conductor, being in charge of the train, will have authority to require brakemen to change positions with each other, when, in his opinion it is necessary. On entering terminals, trainmen will remain in their assigned positions and in charge of the train until the train has cleared the switches which they pull in on." It is also shown that Stephenson knew of the existence of this rule when he accepted employment from the company, and it is claimed that he was guilty of contributory negligence in violating it. It cannot be said to be negligence per se for a brakeman on a freight train to climb down the side of a box car. His duties require him to do so frequently, and whether or not it is negligence to do so at a particular time or under given circumstances is a question of fact for a jury to determine. The doctrine is well established that violation by the servant of rules promulgated by the master for the protection, under such circumstances as those attending the injury, of the class of employés to which he belongs, is of itself contributory negligence, and should be so declared as a matter of law. 1 Labatt on Master and Servant, § 365; Dresser on Employers' Liability, § 109. The rule in question was manifestly adopted, not for protection of the servants, but to measure the servant's duty to the master in the performance of his work. It states in terms that the object was to require the brakemen to be in position to handle the train. Whether the violation by the...