St. Louis, Iron Mountain & Southern Railway Company v. Mize

• Decision Date: 10 January 1903
• Citation: 71 S.W. 660,71 Ark. 159
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MIZE
• Court: Arkansas Supreme Court

71 S.W. 660

71 Ark. 159

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

Supreme Court of Arkansas

January 10, 1903

Appeal from Woodruff Circuit Court, HANCE N. HUTTON, Judge.

Reversed and remanded.

Reversed and remanded for new trial.

Dodge & Johnson, for appellant.

An employee assumes all risks incident to his employment. 46 Ark. 567; 41 Ark. 392; 45 Ark. 324; 48 Ark. 463; 60 Ark. 442. An employee must take notice of obvious defects. 48 Ark. 347; 79 Me. 405; 40 Ia. 341; 39 Minn. 523; 41 N.W. 104; 53 Mich 125; 18 N.W. 584; 67 Mich. 632; 35 N.W. 708; 81 Mich. 835; 46 N.W. 111; Bailey, Master's Liability, 160; Wood, M. & S. § 376; 58 Ark. 178. The injury was incident to the employment. 58 Ark. 338; 22 N.W. 221; 40 Ia. 341; 39 Minn 523; 54 N.J.L. 411; 42 Mich. 525; 122 U.S. 189; 2 A. & E. R. C. 158; 56 Tex. 482 11 A. & E. R. C. 201; 52 Mich. 40; 33 Mich. 133; 45 Mich. 219; 49 Mich. 466; 13 N.W. 508; 139 Mass. 580; 54 Ark. 394; 2 Am. Neg. Rep. 578; 27 Minn. 367; 34 Minn. 94; 41 Minn. 289; 47 Minn. 361; 38 S.W. 260; 35 S.W. 879; 37 S.W. 659; 94 Mo. 206; 86 Mo. 463; 77 Mo. 511; 119 Mo. 322; 40 S.W. 174; 66 Tex. 732; 72 Tex. 159; 86 Tex. 96; 35 S.W. 879; 41 Ark. 542. The verdict was excessive. 57 Ark. 320, 378; 56 F. 250.

J. H. Harrod, P. R. Andrews, T. E. Stanley, for appellee.

OPINION

BATTLE, J.

Nelia Mize, as administratrix of W. H. Mize, deceased, her late husband, sued the St. Louis, Iron Mountain & Southern Railway Company for damages. She alleged in her complaint, substantially, as follows:

The deceased was in the employ of the appellant as locomotive fireman. While so employed on a through freight train, and while the train was at Malvern, on its way north, it was learned that a trestle of the railroad, some three and a half miles north of Traskwood and five miles south of Benton, had been burned about nine o'clock that night. At 12:50 a. m., March 29th, the conductor of the train on which deceased was fireman was ordered to take a force of men and a bridge outfit to the place where the trestle had been burned. While engaged in this service, at 3:15 a. m., the engine on which deceased was fireman ran into the burned trestle, was overturned, and caused the death of deceased.

She further alleged that the defendant was liable for damages on account of this death for negligence committed as follows:

"(1) In not giving the deceased and those in charge of said train warning of the danger as they approached and came to said burned trestle.

"(2) And in not giving the deceased any notice at any time of the danger.

"(3) And in not giving the deceased and those in charge of the train particular, definite and certain information as to which trestle was injured.

"(4) And in giving those in charge of the train erroneous information as to which trestle was injured, and its location."

She then alleged that she is his widow, and a son aged ten years and a daughter aged nine are his next of kin; that the deceased was thirty years old, sober and industrious and had a life expectancy of thirty-four years; that he earned $ 1,000 a year, which he contributed to the support of his family; and that the damage caused by his death to his widow and next of kin is $ 15,000.

The defendant answered, and admitted, as correct, the statements contained in the complaint, which gave "the history of the occurrence and its antecedents up to the wrecking of the engine at the burned trestle, and admitted that the death of W. H. Mize was a consequence of such accident, and denied that it was guilty of negligence as charged in the complaint, and alleged that if any loss, injury or damage resulted from the death of Mize, it was not caused by any negligence of the defendant, but was occasioned solely by the negligence of the deceased.

A jury was impaneled to try the issues. In the trial evidence was adduced which tended to prove that defendant's train dispatcher at Little Rock, Ark., sent a telegram to Silverthorn, the conductor of the train on which Mize was fireman at the time he was killed, and on which he lost his life, in the words and figures following:

"March 29th.

"To Conductor Silverthorn, Malvern:

"Set out your train at Malvern, and take Rupprecht's bridge outfit to burned bridge 575 between mile posts 373 and 374 quickly as possible. There are five bents of this bridge burned.

[Signed]

"A. B."

and that this information was communicated to the engineer and the deceased in time to have avoided any accident on account of the burning of the bridge, and that it was correct. Other evidence was adduced, but sufficient is stated to explain this opinion.

Over the objections of the defendant, the court, at the instance of the plaintiff, instructed the jury, in part, as follows: "You are instructed that, if you find from the evidence that the defendant company had knowledge of the location of the burned trestle before it first ordered Silverthorn and his crew to go to it, and further find from the evidence that it was the duty of the defendant, when it sent Silverthorn and his crew to this trestle, to use reasonable diligence to give them accurate and certain information of the trestle's location, and if you find from the evidence that the defendant failed to use reasonable diligence to give them such information, and find from the evidence that the conductor and crew did not have such information, and further find that the defendant did not give the crew such information, and further find from the evidence that the death of intestate was caused by the failure of the defendant to give such information, or to use reasonable diligence to give the same, you will find for the plaintiff, unless you find from the evidence that deceased was guilty of negligence that contributed to the injury."

And refused to give the following instruction asked for by the defendant: "You are instructed that, if you find from the evidence that plaintiff's intestate knew or had information before leaving Traskwood on his engine that morning that the train was going to a trestle that had been burned, and that said trestle was between mile posts 373 and 374, your verdict will be for the defendant."

But modified it and gave it as follows: "You are instructed that if you find from the evidence that plaintiff's intestate knew or had information before leaving Traskwood on his engine...