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

• Decision Date: 19 March 1898
• Citation: 45 S.W. 56,65 Ark. 138
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. RICKMAN
• Court: Arkansas Supreme Court

45 S.W. 56

65 Ark. 138

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

Supreme Court of Arkansas

March 19, 1898

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

Judgment affirmed.

Dodge & Johnson, for appellant.

A railway company is not an insurer of its servants against danger and when a servant has undertaken a service, he is presumed to have assumed all risks necessarily incident thereto. He is held to the exercise of ordinary care in avoiding danger; and where the danger is one which was as apparent to him as to his section boss, the orders of his section boss do not excuse him for incurring such danger. He is guilty of contributory negligence, even if we grant the section boss to be a vice-principal. 31 S.W. 706; ib. 525; 2 N.E. 115; 37 N.W. 84; 72 Tex. 40; S. C. 11. S.W. 1041; 30 S.W. 95; 72 Tex. 159; S. C. 12 S.W. 172; 23 S.W. 642; 59 Tex 22; 66 Tex. 733-6; 46 Ark. 388; 59 Ark. 479; 56 Ark. 192; 58 ib. 178; 150 Mass. 423; 56 Ark. 237; 63 N.W. 568; 67 N.W 1098. Before a witness can be impeached by proof of previous contradictory statements, a foundation must be laid by interrogating him particularly and minutely as to the making a time, place and circumstances of the alleged statements. 37 Ark. 328; 8 Ark. 572; 15 ib. 359; 16 ib. 569; 52 Ark. 308. Hearsay evidence was admitted, and this is error. 61 Ark. 55; 1 Greenl. Evid. § 99; 57 Ark. 519; 22 S.W. 213; ib. 213. The court erred in modifying the eighth instruction asked for by appellant. Negligence of the master cannot be predicated upon the simple fact that he ordered the servant to do the work; and the addition of a proviso that "the order must be made with care and prudence" destroyed all the force of the declaration of law. 31 S.W. 707. If, to obey an order of the master, the servant must subject himself to a risk obvious to himself, he is guilty of contributory negligence in undertaking to carry out such order. 56 Ark. 192; 58 Ark. 226; 2 Am. Neg. Cas. 578-580.

Grant Greene, Jr., John T. Hicks and W. B. Smith, for appellee.

If the law was correctly given to the jury, their verdict will be upheld, if there was any evidence to support it. 18 Ark. 497; 57 ib. 577; 51 ib. 330; 24 ib. 252; 34 ib. 632. Damages arising from the negligence of the master or vice-principal cannot justly be regarded as risks ordinarily incident to the employment, and, as such, assumed by the servant when he undertook the employment. 108 Mo. 332; 6 L. R. A. 587. The care required of plaintiff is to be judged from the standpoint furnished by the facts of the particular case and the emergency in which he acted. Hence, if the jury held that he was not guilty of contributory negligence, under the circumstances, such decision is conclusive. 154 Mass. 465; 108 Mo. 322; 46 Ark. 438; 17 L. R. A. 291. Where the master orders the servant to do a service, he will not be denied his remedy against the master on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have obeyed the order to undertake the service. 96 Mo. 212-13; 62 Mo. 232; 108 Mo. 332; 24 L. R. A. 719; 2 Thom. Neg. 975; 31 S.W. 706. It is competent to show the bias and interest of a witness by providing his statements disclosing it. 56 Ark. 550; 52 ib. 274; 53 ib. 388.

OPINION

BUNN, C. J.

This is a suit for personal damages by Rickman against the railroad company. Damages laid at $ 20,000; judgment for $ 1,500; and defendant appealed.

Plaintiff was a section hand under the control of one McDougal, as foreman. On the 28th January, 1895, some time about or just after nightfall, it being a cold, snowy and dark night, McDougal, with plaintiff and three other section hands and a citizen, after quitting work for the day, left Russell station on a hand car, to go to their station house at Bald Knob, a short distance south of Russell, on the railroad. While at Russell they could see the headlight of an engine at Bald Knob, and a train was due to pass up about that time. It was suggested by one of the hands that they had better wait until the coming should pass, but the foreman said, "No," that the engine, whose light was then in view, was standing at Bald Know on a side track. And so, boarding the hand car, they started for Bald Knob. It pretty soon became evident that the train from Bald Knob was approaching, and another of the hands suggested that they had better stop, and take off the hand car at the next crossing, which they were about then to arrive at. The foreman said, "No, we will go to the next crossing, and then get off." But, before they reached the next crossing, the coming train had approaching so near that the foreman ordered them to slow up and get off, and take the hand car off, or words to that effect. This was all done hurriedly. The foreman stood a little way from the handcar, directing the hands to take it off quick. One of them fell, and plaintiff took his place in the effort to life the car off. At this juncture the approaching engine struck the hand car, knocked it off, and broke the leg of plaintiff, who did not let go of the car in time to save himself, as the others did.

Under recent statutes (Sand. & H. Dig., § 6248-9), a foreman of a section gang is not a fellow servant of the men...