St. Louis, Iron Mountain & Southern Railway Co. v. Inman

• Decision Date: 04 February 1907
• Citation: 99 S.W. 832,81 Ark. 591
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. INMAN
• Court: Arkansas Supreme Court

99 S.W. 832

81 Ark. 591

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. INMAN

Supreme Court of Arkansas

February 4, 1907

Appeal from White Circuit Court; Hance N. Hutton, Judge; reversed.

Judgment reversed and cause remanded.

B. S Johnson and S.D. Campbell, for appellant.

1. Under the circumstances of this case, and because of the nature of the work in which deceased was engaged, there was no duty resting on appellant to provide him with a safe place to work, but deceased assumed all the risks and hazards of the employment. Appellee is aided by no presumption of negligence on the part of appellant. 79 Ark. 76; 179 U.S 658; 76 Ark. 69; 58 Ark. 217; 73 Ark. 55; 65 F. 48; 67 F 507; 144 F. 605. See, also, on the question of assumed risk, 46 Ark. 569; 54 Ark. 389; 61 Ark. 549; 63 Ark. 427; 64 Ark. 367.

Even though there may be evidence of witnesses which alone would sustain the verdict, yet, if the physical facts disclosed in the record show that such evidence is unreasonable and contrary to human experience and common observation, the court will reverse. 79 Ark. 608.

Uncontradicted facts show that neither Inman nor Marrs had any control or superintendence the one over the other, nor was either invested with such authority by appellant, and that, although belonging to different gangs, all, in this emergency, were working together for a common purpose, all in the same grade under the common direction and supervision of Busby. Such being the case, the fellow-servants' law applies, and precludes recovery. Kirby's Digest, §§ 6658, 6659; 63 Ark. 477 and authorities supra.

2. The court erred in admitting incompetent testimony as to statements made and language used by persons at the wrecked bridge, the same not being a part of the res gestae, being mere hearsay, and throwing no light on any element of liability as to the proximate cause of the injury. 76 Ark. 430.

3. Testimony of witnesses to the effect that deceased was a cautious, prudent or careful man was improperly admitted. 76 Ark. 302; 58 Ark. 454; 115 F. 268; 83 Am. Dec. 592; 25 Am. Rep. 172; 52 Id. 744; 48 S.W. 568; Id. 608; 6 Thompson on Neg. (2 Ed.), § 7883.

4. It was error to admit testimony as to lack of warning at the time of the accident. 58 Ark. 227 and authorities supra.

5. The court erred in reading to the jury the sections of the digest upon the law of fellow servants and vice principals without explanation. 63 Ark. 477.

6. At the conclusion of the argument of appellee's attorney, the audience applauded, whereupon the court, on objection of appellant, reprimanded the audience, but gave no cautionary admonition to the jury. The jury were thereby prejudiced, and the proceedings at the time were prejudicial even if the court had admonished the jury. 65 Ark. 627.

S. Brundidge, Jr., and J. W. & M. House, for appellee.

1. While it is true the burden of proving negligence is on appellee, yet when positive acts of negligence, or even acts from which negligence may be inferred, are shown, that burden is discharged. 57 Ark. 383.

While an employee assumes all the risks incident to the service he enters, he does not assume a risk created by the negligent act of the master. 67 Ark. 217. He neither waives nor assumes the negligent act of the master or vice principal. 16 Am. & Eng. Ry. Cas. (U. S.) 324; 12 Id. 492; Id. 636; Id. 517.

Marrs was at the time a vice principal, acting for the appellant, and knew that when the rivets were cut the wreckage would fall. It was his duty to see that no one was near it at the time, if by timely warning it could have been done. 45 Ark. 318; 46 Ark. 388. And the fact that the work was of a dangerous character should have caused a higher degree of care on the part of those in charge of the work. 14 Am. & Eng. Ry. Cas. (N. S.) 657.

The physical facts in no wise contradict the evidence in the record, and the cases cited by appellant on this point have no bearing upon any question arising in this case.

2. It is in proof that Inman belonged to the bridge building crew, with Woodall as his foreman, and that Marrs was foreman of the wrecking crew, who had no connection whatever with the work in which Inman was engaged. Marrs's crew were engaged simply in clearing away the wreckage, and he had authority to direct the work and give orders to his men. It is further proved that Busby at the time was three hundred yards away and not giving orders. Deceased and Marrs were not fellow servants. Kirby's Digest, §§ 6658, 6659; 65 Ark. 138; 70 Ark. 411.

3. Declarations made by the servant are admissible against the master, when they are made in the transaction of his business, and coincident with the events to which they relate. 28 Am. & Eng. Ry. Cas. (O. S.) 524; Id. 467; 16 Id. 580; 34 Id. 127; 10 Id. (N. S.) 368.

4. Evidence to the effect that deceased was a careful and cautious man was competent; but, if not, appellant can not complain, because it invited such testimony by introducing in evidence the application made by Inman for employment. Moreover, if incompetent, it was harmless, because it only proved that which the law presumes to be true until the contrary is shown. 20 Am. & Eng. Ry. Cas. (O. S.) 422; 35 P. 269; 45 P. 581; 100 Am. Dec. 69; 63 N.Y. 643; 52 Am. Rep. 468; 18 Am. Rep. 407; 163 U.S. 353; 72 Ia. 371. But the issue was raised as to contributory negligence of deceased, hence his habits as to care and caution were admissible. 44 A. 388; 114 Ia. 257; 99 Ill.App. 143; 1 Id. 439; 20 Col. 107; 61 N.H. 416. Such evidence is especially admissible where the party dies, and can not be before the court to testify. Ubi supra.

5. If it was error to read the statute relating to fellow servants, etc., without explanation to the jury, it is cured by other instructions given at the instance of appellant.

OPINION

BATTLE, J.

Matilda Inman, as administratrix of L. H. Inman, deceased, brought this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages occasioned by the death of her intestate. She alleged in her complaint that L. H. Inman was, on the 12th day of September, 1904, a bridge carpenter, and was in the employment of the defendant, and that one J. A. Woodall was the foreman of a gang of men with which he was working at that time, and on that day, while working under such foreman on a bridge of the defendant across the Ouachita River, near Arkadelphia, another gang, of which Frank Marrs was foreman, wilfully and negligently cut the bolts and supports of an iron beam in the bridge, and thereby caused the same to fall upon and kill Inman; that deceased left plaintiff, Matilda Inman, his widow, and two children, Fred Inman, aged twenty years, and Anna Inman, aged thirteen years, him surviving.

The defendant answered and denied the allegations in the complaint, and alleged that the death of Inman was caused by his own contributory negligence, and was the result of and incident to his employment, and within the risks and hazards assumed by him.

The following facts were shown by the evidence adduced in the trial before a jury in this action: On the 11th of September 1904, a freight train of the defendant broke through and wrecked a span of the bridge across the Ouachita River, near Arkadelphia Immediately all available gangs of workmen in the employment of the defendant, and they were many, were called to remove the wreckage and repair the broken span, each gang having a foreman. But the superintendence of this work was under S. H. Busby, and all worked as one gang under him. On the 12th day of September, 1904, "while Inman, who was a bridge carpenter and a member of one of the gangs, was engaged in this work, and while he was taking measurements for the purpose of repairing the bridge, other men were cutting rivets and taking away parts of the wreckage of the span as fast as possible. This span, before the wreck, was supported by two large rock piers some distance apart, and when the freight train broke through the span there were portions of the broken span left, so that, while parts of the freight train and of the wrecked span rested against one corner of the pier, there was, as to that part of the pier opposite, a distance in the clear, between the wreckage and the north side of the south rock pier, of from two to five feet--at least such clear space sufficient for a man to ascend or descend a rope between the wreckage and the pier. This pier was about twenty feet high, about eighteen feet wide at the top, about five or six feet thick at the top, and all dimensions increasing towards the base (or "flaring" as termed by the witnesses.) There was a rope fastened to one of the ties at top of the pier and hanging down to the base, so that it could be turned in any manner as to the pier--on the north side between the pier and the wreckage or alongside the shortest diameter of the pier on either side, or on the north side of the pier (its longest diameter), being the opposite side from the wreckage. This rope for a part of the time was suspended on one side, and a part of the time on the other. When Inman descended it the last time, it was hanging between the wreckage and the north side of the south pier. It had been used indiscriminately by persons ascending and descending. Who changed it from one side of the pier to the other, or why the change was made the evidence does not show. But it does show that it was used by different people, and that some, in descending, came down until the wreckage was reached, and then got on that to work or to go down to the bottom; while others would continue on the rope to the end. The wreckage stood with the distance from two to five feet between it and the pier, as before stated, from some...