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

• Decision Date: 25 May 1889
• Citation: 11 S.W. 699,51 Ark. 467
• Parties: ST. L., I. M. & S. RY. v. RICE
• Court: Arkansas Supreme Court

11 S.W. 699

51 Ark. 467

ST. L., I. M. & S. RY. v. RICE

Supreme Court of Arkansas

May 25, 1889

APPEAL from Nevada Circuit Court, C. E. MITCHEL, Judge.

Judment reversed and cause remanded.

Dodge & Johnson, for appellant.

1. Contributory negligence.

By plaintiffs own confession he was guilty of such contributory and palpable negligence as to preclude a recovery. 5 McCrary, 471; 75 Ill. 108; 27 Minn. 141; 47 Miss. 420; 12 Metc., 415; 41 Miss. 131; 2 M. & W., 244; 1 Ad. & El., 36; 4 Beng., 142; 9 Hill, 522; 17 F. 882; 39 Id., 620; 74 Ind. 445.

2. Disobedience of rules.

Plaintiff, by violating the rules of the company known to him, or which he ought to have known, took the risk upon himself, and he cannot recover. 51 Miss. 641; 31 Mich. 430; 50 Wis. 66; 33 Ohio St. 227; 67 Mo. 239; 44 Ark. 293; 66 Me. 429; 74 Ill. 344; 98 Mass. 575; 46 Ark. 567; 44 Wis. 250; 92 Ill. 139; 76 N.Y. 125; 50 Iowa 680; 20 Mich. 105; 5 Ohio St. 541; 45 Ark. 264; 46 Id., 78, 567.

3. Fellow-servant.

Even if the car inspector was negligent, it was the negligence of a fellow-servant for which the company is not liable. 46 Ark. 568. This decision is sustained by the weight of authority, citing 2 A. & E. R. Cases, 142; 46 Mich. 258; 11 A. & E. Cas., 187; 77 Ala. 1882; 5 N.Y. 492; 98 N.Y. 211; 17 A. & E. R. Cases, 578; 129 Mass. 271; 124 Id., 114; 62 Tex. 597; 81 N.C. 446; 8 A. 594; 6 N.W. 485; 2 Thomp. Neg., 1034; 17 N.E. 216; 54 Wis. 264; 32 Md. 418; 49 Miss. 285; 85 Ill. 502; 78 Ind. 79.

The ruling in the Gaines case is supported by a majority of the State courts and text writers, and should not be disturbed.

Scott & Jones, for appellee.

1. Contributory negligence.

Primarily it was the duty of defendant to have exercised ordinary care and prudence, to have furnished plaintiff with safe tools and instrumentalities with which to have performed the services intrusted to him, and to have exercised the same care and prudence in maintaining such tools and instrumentalities in good repair.

The State and Federal courts with singular unanimity have held this to be the master's duty to his servant. The servant has a right to presume the master has performed this duty and act upon this presumption. 48 Ark. 334. And it was the duty of plaintiff to exercise ordinary care and prudence in performing his services. The want of this, if the proximate cause of the injury, would bar a recovery. See 11 East., 60; Beach Cont. Neg. , 8; 2 M. & W., 224; 68 Ill. 580. Review the evidence and contend that plaintiff came up to the full measure of his duty, and was neither reckless or imprudent, as he did not know of the defects until after the accident happened. The mere fact that he knew of defects and uses them, does not necessarily charge him with negligence, or the assumption of the risks. The question is, ought he to have known such risks in the exercise of common sense and prudence? 33 N.W. 551; 32 Minn. 230; 34 Id., 45; 27 N.W. 662; 13 P. 491; 3 Col. 499.

2. Proximate Cause.

Want of ordinary care is no defence, unless such want of care on the part of plaintiff was the proximate cause of the injury. Beach Cont. Neg., 32; 85 Pa. 293; 8 A. & E. R. Cas., 130. This is a question of fact for the jury, under proper instructions. 75 Mo. 653; 24 Ohio St. 654; 4 Cal. 30; 11 A. & E. R. Cas., 421.

The burden was on defendant to show by preponderance of evidence that plaintiff was guilty of contributory negligence. 46 Ark. 182; Ib., 436; 48 Id., 475.

3. The plea of "foreign cars" will not avail. 30 Minn. 231; 56 Ind. 511; 7 S.W. 477.

4. As to "Disobedience of Rules," see 57 Miss. 641; 50 Wis. 66; 33 Ohio St. 227; 48 Ark. 348; 110 Mass. 240.

5. Fellow-servants.

Review the decision of this court in R. B. v. Gaines, 46 Ark. 568, and contend that it should be reviewed and overruled, as against the weight of authority and better reasoning. 55 Vt. 84; 45 Am. Rep., 591; 48 Ark. 345; 100 U.S. 213; 53 Iowa 395; 55 Ill. 492; 12 P. 352; 29 Kan. 633; 33 Kan. 669; 65 Mo. 225; 78 Mo. 567; 7 S.W. 477; 26 Minn. 40; 14 F. King v. O. Ry. Co.; 116 U.S. 642; 80 N.Y. 46. The true test is the character of the act performed, and not the rank or grade of the person performing it.

6. When the servants of a common master are employed in "different departments," the master is liable. 4 S.E. 211; 12 N.E. 225; 109 Pa. 296; 110 Mass. 240; 14 Am. Rep., 508.

OPINION

SANDELS, J.

In attempting to couple cars on 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 twelve 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 two hundred 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 employes, 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-bars and other appliances are known to be in good order." That the published rules of the company do not require employes 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 is 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 employes, 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 employes, but stands in the masters 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 employes, 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 car 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...