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

• Decision Date: 02 December 1899
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. TOUHEY
• Court: Arkansas Supreme Court

54 S.W. 577

67 Ark. 209

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

Supreme Court of Arkansas

December 2, 1899

Appeal from Lonoke Circuit Court, JAS. S. THOMAS, Judge.

Judgment affirmed.

Dodge & Johnson, for appellant.

The instructions given for appellee, proceeding upon a theoretical case of fellow-servant or vice-principal, not borne out by the record, are abstract and misleading. 63 Ark 684. The case is plainly one of assumed risk. Even if a vice-principal had been present, unless through some act or conduct of his he had relieved the servant of the duty to observe and protect himself against dangers, it would have created no liability. 59 Ark. 478. It is not the duty of a servant to obey where obedience will subject him to a latent danger. The second, third and forth instructions for appellee are erroneous. The railway company was not an insurer of the safety of its machinery and appliances. 41 Ark. 392; 45 Ark 324; 48 Ark. 463. The employee assumes the risk of all such dangers as are incident to the employment, open to his observation and with knowledge of which he is chargeable in the exercise of reasonable care. 46 Ark. 567; 60 Ark. 442; 48 Ark. 347; 79 Me. 405; 40 Ia. 341; 39 Minn. 523; S. C. 41; N.W. 104; 53 Mich. 125; S. C. 18 N.W. 584; 67 Mich. 632; S C. 35 N.W. 708; 81 Mich. 435; S. C. 46 N.W. 111; Bailey, Mast. Liab. 160; Wood's Mast. & Sev. § 376; 58 Ark. 178; 56 Ark. 237; 58 Ark. 338; 22 N.W. 221; 40 Ia. 341; 39 Minn. 523; 54 N. J. Law, 411; 42 Mich. 525; 122 U.S. 189; 27 Minn. 367; 2 Am. & Eng. R. Cas. 158; 56 Tex. 482; Pierce, Railroads, 379; 2 Thomp, Neg. 1009; 11 Am. & Eng. R. Cas. 201; 52 Mich. 40; 33 Mich. 133; 45 Mich. 219; S. C. 7. N.W. 791; 49 Mich. 466; S. C. 13 N.W. 819; Id. 184; 62 Ia. 629; 21 Am. & Eng. R. Car. 593; 139 Mass. 580; 79 Me. 397; Beach, Cont. Neg. § 138; 140 Mass. 201; 31 Am. & Eng. R. Cas. 281; 6 S.W. 434; 54 Ark. 394; 2 Am. Neg. Rep. 578; 27 Minn. 367; 34 Minn. 94; 41 Minn. 289; 47 Minn. 361; 35 S.W. 260; ib. 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; 78 Tex. 439; 86 Tex. 96; 35 S.W. 879; 68 N.W. 1057; Cooley, Torts, 522; Wood, Mast. & Serv. §§ 326-335; 2 Th. Neg. 1008; McKinney, Fellow Serv. § 30; 47 N.W. 182; 63 N.Y. 449; 16 A. 280; 62 N.W. 624; Bailey, Master's Liab. 169, 170-1; 42 Neb. 793; 46 Neb. 556; 36 N.E. 44; 4 So. Rep. 701; 52 Ia. 276; 7 A. 284; 33 N.E. 510; 11 A. 659; 41 Ark. 542. The verdict is excessive. 57 Ark. 378; 57 Ark. 320; 56 F. 250.

Marshall & Coffman, for appellees; Trimble & Robinson, of counsel.

Signals are given under the rules of the master, and the giving of them in this case did not affect the grade of deceased as a servant. 36 S.W. 432. Deceased was not guilty of contributory negligence in acting upon the reasonable appearance of danger and jumping from the car. 36 S.W. 491; 55 Ark. 248. Deceased can not be said to have assumed the risk of the negligence of his vice-principal. Bail. Mast. & Serv. 264; 21 So. 440. The knowledge which will defeat a servant's right to recovery must be of the danger, and not of the defect (53 Ark. 128; ib. 465, 467); and it must be a knowledge of the specific danger in question, and not of danger in general. 42 Wis. 583. On this point and upon the general question of assumed risks and knowledge of the servant, see: 19 P. 191; 18 N.E. 209; 9 N.E. 608; 16 P. 146; 42 Wis. 583; 31 P. 283; 49 N.W. 655; 30 Cent. Law Journ. 462 n.; 82 F. 720; 87 F. 849, 854; 41 N.E. 1037; 44 N.W. 884; 35 A. 305; 88 F. 44. Under the circumstances of the case deceased had a right to rely upon his superior's judgment and obey his order. 40 N.E. 700; 27 P. 728; 104 Mo. 114; 58 Mo.App. 27, 68. The servant has this right so to rely upon the master in all cases where the danger is not so obvious that no prudent man would obey the order. 5 Rap. & Mack's Dig., Ry. Law § 435, p. 238, and cases; 18 L. R. A. 827; 17 id. 602 n; 14 F. 564; 96 Mo. 207; 129 Ind. 327; 2 Sh. Neg. 97n. 5; 44 N.E. 876; S. C. 59 Ill.App. 32; 66 N.W. 271; 162 U.S. 93; S. C. 56 F. 700; 30 L. R. A. 814; 16 Id. 819 n.; 40 Mich. 424; 24 L. R. A. 717. The negligence of the vice-principal was in ordering the servant into a situation of danger. 45 S.W. 56; 5 Rap. & Mack's Dig., Ry. Law, §§ 435, 441; 23 N.E. 675; 27 P. 701; 12 F. 600; S. C. 17 ib. 67. The verdict is supported by the evidence and must stand. 83 Mo. 481.

Dodge & Johnson, for appellants on motion for rehearing.

Where the defect or danger which caused the injury is patent, or is of such a nature that the servant can appreciate and see it at least as well as the master, the risk is one which the servant assumes. 150 Mass. 423; S. C. 41 Am. & E. R. Cas. 327; 157 Mass. 418; 32 N.E. 464; 112 Mo. 220; 20 S.W. 436; 77 Wis. 51; 45 N.W. 807; 31 Am. & Eng. R. Cas. 199; 103 U.S. 370; 17 A. 7; 17 N.Y.S. 715; 17 N.Y. 552.

Marshall & Coffman, for appellee, on motion for rehearing.

The danger was a latent one. 63 F. 530. The agent does not assume a risk which is not so apparent as to render his act imprudent. 40 L. R. A. 781-2, 788; 54 Ark. 389. The servant is not held to have assumed a latent risk, merely because he had equal opportunities with the master for knowing of it. 41 L. R. A. 130, 131.

BUNN C. J. RIDDICK, J., dissenting. BATTLE, J., absent.

OPINION

BUNN, C. J.

Thomas Dalton, an employee of the appellant company, was killed by the falling of a sempahore pole near its tracks in its yards in North Little Rock on the 6th of November, 1895, and the appellee, John W. Touhey, was appointed administrator of his estate, and brought this suit against the company for the benefit of the widow and children of the deceased, laying the damages at $ 15,000. The defendant answered, putting in issue all the material allegations of the complaint. A jury trial was had, resulting in a verdict of $ 8,000 for plaintiff, and defendant appealed.

The allegations as to negligence in the complaint are as follows, viz.: "Plaintiff says that the defendant so carelessly and negligently caused and allowed its cars to be and remain in a defective and unsafe condition as aforesaid, and so carelessly caused and allowed its said semaphore pole to stand too near its track, and so carelessly and negligently, by and through its foreman as aforesaid, caused its cars to be moved while in such condition, well knowing the same, and his said intestate not knowing it, and in such a careless and negligent manner as to cause the death of his said intestate, as aforesaid." In this there are two distinct charges of negligence; one in having the pole too near the track; and the other in permitting its cars to be moved as they were on the track in such condition as that in which they were at the time.

The first question raised is whether or not C. Streetor, the foreman of the crew in charge of the wrecked cars, was a fellow servant with the others of the crew, among whom was the deceased, or was a vice-principal to the company. The testimony of Streetor affecting the question is substantially as follows, viz.: He states that on the 5th November 1895, he was engine foreman in the defendant's yards in North Little Rock; that there were three damaged cars brought into the yards at that time, and that he received a switch order between 9 and 10 o'clock that evening with regard to these cars, but that he could not tell (remember) from whom the list came. His switch crew consisted of Ryan, Harmon and Dalton, and the engineer Phillips, and a fireman whose name he could not remember; that these men constituted his switching crew in the yards, and were working under him. The duty of witness and this crew was to do any work needed in the wards, switching and moving cars, including damaged cars, to and from the tracks in the yard to the repair shops. That he did not have power to employ these men, and only reported them when they failed or neglected or refused to do their work. That all the crew saw the condition of the damaged cars, when they went to move them to the repair shops, and that he called his crew's at attention, and warned them to be careful, so that no one might get hurt in handling them, for there were no drawbars on the ends of these cars, and one of them extended out on one side so far that it would not clear a car on the track beside the one they were on (that is track No. 11), the projection being about a foot (meaning farther than usual), caused by the telescoping of one car into and over another. That there were three of the damaged cars (two baggage and one mail car), and these were in a train,--first one of the cars, and then two, one in and on the other, these making the projection, and all were pushed by an engine and tender behind. Witness had informed his crew that they were going to get the three cars and put them on No. 8 track (the repair track), and he said also that they had made room for these cars on this track before they went after the cars on the other track; that, as they were going up the main track; Dalton and the others of the crew were talking about the wreck in which these cars had been wrecked the day before, and asking how each would have felt had he been in it. In the midst of this conversation, which made all of them somewhat nervous, we infer, in view of the very bad condition of the cars upon which they were then riding, the foreman, Streetor, who was sitting on the front platform of the front car, told Dalton, seated on a step below him, to move and give him room as he might have to jump at any time. These two were on the side of the semaphore pole, and the others were on the other side and elsewhere.

From this testimony, which is undisputedly true, it is impossible to escape the conclusion that, in the control and management and running of these...