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

• Decision Date: 09 July 1917
• Docket Number: 101,112
• Citation: 197 S.W. 288,129 Ark. 520
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STEEL
• Court: Arkansas Supreme Court

197 S.W. 288

129 Ark. 520

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

No. 101, 112

Supreme Court of Arkansas

July 9, 1917

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause remanded.

E. B Kinsworthy, W. R. Donham and W. G. Riddick, for appellant.

1. A verdict should have been directed for defendant. The evidence here is practically the same as upon the former appeal except that of Miss Chaplain, a new witness. 119 Ark. 349. The injury was due to a risk Steel assumed and the testimony is not sufficient to show any injury. The blue flag rule was in force and it was his duty to post it; he violated the rule. 3 Labatt on Master & Servant (2 ed.), par. 1281; 83 Ark. 334; 56 Ill.App. 462; 11 Ohio C. C. 553; 12 C. C. A 595; 24 U.S. App. 16; 63 F. 228; 22 S.E. 833; 27 N.E. 110; 145 N.Y. 190; 157 F. 347; 110 Mo. 394. Failure to obey rules is negligence. 100 Ark. 380; 120 Id. 61; 115 Id. 437. A yardmaster has no authority to unmake rules of the company. 124 Ark. 437. No negligence was attributable to defendant. The cause of the injury, if any, was Steel's own negligence in going under the car without posting a blue flag. 60 U.S. (L. Ed.) 732; 233 U.S. 492.

This case is governed by the Federal Employers' Liability Act and no presumption of negligence on the part of defendant arises on the mere proof of injury by operation of the train. The State law is superseded. Roberts, Injury to Interstate Employees, p. 38; 79 S.E. 932; 153 Ky. 34; 240 U.S. (60 L. Ed.) 1030.

2. Conceding that Steel did not, as matter of law, assume the risk of violating the blue flag rule, nevertheless the instructions given for plaintiff on this point were erroneous. The question of defendant's liability was not submitted to the jury under proper instructions. The proof is that Steel died of typhoid fever.

3. The court erred in its instructions as to the burden of proof. This burden was on plaintiff under the Federal act. See cases supra.

4. The court erred in refusing and in amending defendant's instruction asked. Cases supra.

5. There was error in the form of the verdict prepared by the court. It was not in the alternative and was virtually a direction to find for plaintiff.

Bratton & Bratton, J. S. Utley and D. M. Cloud, for appellee.

1. There was ample testimony as to the injury, death from the injury, negligence of defendant and the damages. The case was properly submitted to a jury. McDonald was a foreman for the master and was not working on the cars. Review the cases cited for appellant and contend that they do not apply.

2. There is no error in the instructions given. As modified they state the law correctly. An employee is warranted in relying upon the assurance of a foreman and vice principal, and was justified in going under the car and there was no negligence or assumed risk in so doing.

3. There was no error in giving instruction "D" and refusing No. 17, which was in direct conflict with "D." It correctly states the law. 95 Ark. 297; 114 Id. 224; 94 Id. 15; 104 Id. 59; 68 F. 148; 23 A. 733; 47 L. R. A. 647; 96 Md. 683.

4. Where two independent causes concur in producing an injury, the party at fault for one of the causes will be liable if the injury would not have occurred in the absence of such fault. 106 N.E. 742; 170 S.W. 459; 133 P. 1103; 68 So. 234; 66 Id. 517; 135 P. 845.

Where several proximate causes contribute to an injury, each is the efficient cause if the accident would not have happened without it. 144 N.Y.S. 322; 159 S.W. 126; 127 P. 488.

5. Instruction "C" was properly given. 117 Ark. 505. The Federal Employers' Liability Act does not strip the State courts of all their powers, or change the rule as to the weight of the evidence. The Federal rules do not control in matters pertaining to the procedure in the enforcement of a remedy. 60 U.S. (Law Ed.) 961. The instruction is proper under the Federal Act. 199 F. 379. The presumption is that deceased was exercising due care for his protection. 121 Minn. 388; 199 F. 702; 177 Mo.App. 286; 179 Mich. 388.

Appellant was liable for the acts of those in charge of the train, and those of its vice principal. 159 F. 347; 161 Id. 66. The doctrine of res ipsa loquitur is applicable under the Federal act. 117 Ark. 505; 188 F. 649. The question depends upon the facts of the particular case. 110 F. 669; 101 Id. 59; 11 Id. 439; 67 Id. 573; 166 Id. 283; 91 Id. 206; 10 Id. 140; 211 Id. 111; 155 Id. 655; 77 Ark. 1; 75 Id. 479; 57 U.S. (L. Ed.) 818; 117 Ga. 106, etc.

6. The risk was not an assumed one. 178 Mo. 528, and cases supra.

7. Alternative verdicts were submitted to the jury.

STATEMENT BY THE COURT.

This is the second appeal in this case. The facts developed on the first trial are very elaborately stated in the case as reported in 119 Ark. 349. For the purpose of this opinion they may be briefly restated as follows:

R. D. Steel was in the employ of the appellant as a car repairer. He was directed by McDonald, the foreman of the repair gang, to go under a car and repair it. Steel said something about whether or not they should have the flag put out and the foreman told him to go ahead under there, that they were in a hurry, and he (McDonald) would watch out for, and protect him. But the foreman did not observe the rule which required workmen while working under cars to put out a blue flag as a signal of danger. The rule is as follows: "Examine personally scaffolding, tackle and all other appliances before trusting them. If your duties require you to go around, under or on cars, protect yourself with blue signals." It was shown that Steel was furnished with a work card upon which this rule was printed.

While Steel was at work under the car an engine, with cars attached, backed up and shoved the cars under which he was working some two or three car lengths, moving them very slowly. About the time the cars stopped Steel came out from under the same, and the witness who saw him do so stated that he could not tell whether he was injured or scared, or both. Steel, at the time of and prior to this occurrence, was shown to have been a well man and one exceedingly quick in action and unusually stout. After this occurrence he was unable to continue work, and the foreman offered to carry him home on the speeder. When he got home he was unable to walk and crawled up the steps. He went to bed immediately and called the company's doctor. The occurrence took place in October, 1912. There was a bruised place on his back and on the left side of his head, about his ear, from which he continued to suffer until the time of his death. He was not able to do anything after the occurrence. Before his alleged injury he was accustomed to horseback riding, but after that he never rode again. Although he was able to go about, he was never thereafter able to do any work. He finally took to his bed in June, 1913, and died on the 12th of August.

There was testimony on behalf of the appellant tending to show that the immediate cause of Steel's death was typhoid fever. But there was testimony on behalf of the appellee tending to prove that his death did not result from typhoid fever alone, and would not have resulted from that cause alone, but that his death was the result of the injuries he received at the hands of the employees of appellant while he was working under the car.

This suit was instituted by the appellee as the administrator of the estate of Steel to recover damages on account of the death of Steel, which the complaint alleged was caused through the negligence of appellant's foreman in failing to protect Steel and in permitting the engine and cars to be run upon the track and upon the car under which Steel was working. The answer denied the material allegations of the complaint, and averred that at the time of the alleged injury the appellant was engaged in interstate commerce, and that the car which was being repaired was a car that was being used in interstate commerce, the same being used in transporting dirt from a point near Bryant, in Saline County, to different points along the track of appellant, the same being a line of railroad extending from St. Louis, Missouri, to Texarkana, Arkansas, and alleging that by reason of the above facts Steel, at the time of his injury, was employed in interstate commerce, and that therefore the cause of action was controlled by the Federal Employers' Liability Act, approved April 22, 1908.

The jury returned a verdict assessing the damages accruing prior to the death of Steel at $ 1,000, and the damages on account of the death at $ 2,000. Judgment was entered in favor of the appellee, and this appeal is duly prosecuted. Other facts stated in the opinion.

WOOD, J. MCCULLOCH, C. J. Mr. Justice HUMPHREYS concurring.

OPINION

WOOD, J., (after stating the facts).

I. The appellant contends that the court should have directed a verdict in its favor on the issues of fact involved in the case, towit, as to whether or not Steel was injured as alleged in the complaint, and, if so, whether or not these injuries resulted in his death, and on the issues of negligence and contributory negligence and assumed risk. There was substantial evidence to sustain the verdict, which is conclusive so far as this court is concerned, and a discussion of the facts could serve no useful purpose as a precedent.

II. The next question for our consideration is whether or not the court correctly submitted the issues of fact in its instructions.

On the issue of fact as to whether the death of Steel resulted proximately from the alleged injury or whether the proximate cause of his death was typhoid fever, the testimony was not the same on the last trial as on the first. On the last trial there was testimony from which the...