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

• Decision Date: 26 June 1916
• Docket Number: 84
• Citation: 188 S.W. 14,124 Ark. 588
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HOWARD
• Court: Arkansas Supreme Court

188 S.W. 14

124 Ark. 588

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

No. 84

Supreme Court of Arkansas

June 26, 1916

Appeal from Lonoke Circuit Court; T. C. Trimble, Judge; affirmed.

STATEMENT BY THE COURT.

In October, 1914, appellee was in the employ of the appellant as fireman on one of its engines. Appellee, while engaged in his work on one of the engines that had been sent to help clear the track of a derailed train, was sitting on his seatbox watching for signals that the engineer was unable to see on his side of the engine because of a curve at that point in the track. The engine had gotten behind the cars and was pushing them up in the yards. The fire was low and appellee stepped back toward the tank. As he went to lift his right foot it hung in something that threw him, and as he grabbed it turned his back out, injuring him. Appellee was discovered lying within a few inches of the track in an unconscious condition. He did not remember anything after he started to fall. When he raised his foot it hung and he fell forward. Appellee supposed that his foot went down between the tender and the engine. There was a sheet steel apron there covering the space between the tender and the engine. Some engines have a wider space than others. On some of the engines there was a space about twelve inches that the apron covered. Appellee had frequently to cross this apron in the discharge of his duties. He never went more than thirty minutes without crossing over the apron in putting in coal. On the night of the injury, not long before appellee was discovered in his unconscious condition, a witness had seen him at work on his engine. Shortly thereafter they examined his engine and found that one fastening of the apron on the left side had become loose and the apron had worked back, leaving an open space between the engine and the tender of about eight or ten inches.

The apron to this engine was fastened with a cotter key in the place in which a bolt was usually employed to make the connection. Fastening by a bolt was the safer method. The cotter key used to fasten the apron was out of the side next to the cab. When the cotter keys are used the ends are spread to keep them from coming out of the hole through which they are placed to make the fastening. Witnesses demonstrated before the jury the way in which the apron was fastened by a model or small cut representing the manner in which the apron was fastened to the engine with the bolts and the cotter keys. One witness stated that the cotter key was just slipped in. "It was barely long enough to reach through." Another witness stated that he took the cotter key and without any effort inserted it in the place where it was before.

There was a rule of the company providing that the engine house foreman must be sure that each locomotive, before leaving the house for service on the road, is in good working order and is fully supplied with signals and all other requisites including an ample supply of fuel and water.

The engines were supposed to have electric lights. On the night of the injury there was one light to the steam gauge and one for the water gauge. There were no back lights. Appellee was not able to see the condition of the cotter key with the lights he had. He stated that he did not think he could have seen it if he had taken special pains to look. The engine was supposed to be in first-class running order and safe condition when it was turned over to the enginemen. The company had an inspector to report anything that an engineer does not see. It was no part of the appellee's duty to look after the apron.

When the enginemen were switching the fireman was supposed to put in all of his time watching for signals and different things and if the steam got low it was his duty to get down and put in a fire. When the train was running, the scoop was back in the tank and when he stepped down off of his seatbox he was facing the tank. The seatbox was some ten inches higher, and when he stepped off of that he stepped off to one side and the next step would land him on the open space or on the apron.

The appellee sued the appellant for damages resulting from his personal injuries, alleging that "instead of securely fastening the apron to the left side of the engine with a bolt and nut, or in some other way safely securing and fastening the same," appellant "negligently and carelessly fastened the same by merely inserting a cotter key in such way as that the same worked or pulled out, thus leaving the left side of the apron unfastened and in such shape that it did not cover, but left wholly unprotected the open space of about eight or ten inches between the engine and tender;" that it was the duty of appellant "to have used a bolt and nut in fastening the apron, or at least if it saw fit to use a cotter key, to have the same spread open after inserting the same in the space left from the bolt, so that it would not work or pull out by the jarring of the engine; that when said cotter key was put in place on this engine it was not spread open, nor was anything done to prevent its coming out; that on account of there being little or no light in the cab of the engine, appellee's injury having occurred in the night time, between 8:30 and 9 o'clock, when it was quite dark, he was unable to see that the apron had worked loose, and therefore had no knowledge thereof; that while engaged in his duty as fireman he undertook to step in the tender while the engine and train were in motion, and on account of the negligence and carelessness of the defendant as set forth he fell into the open space and was hurled with great force to the ground below, thereby receiving great and permanent injuries."

The appellant denied the material allegations of the complaint and set up that appellee at the time of his injury was engaged in running a train which was pulling interstate commerce within the terms of the Federal Employer's Liability Act of 1908, under which appellee assumed the risk incident to the employment, and that the injury complained of was one of the ordinary and usual risks of the employment. The appellant also set up the defense of contributory negligence.

The court granted appellant's prayer for instruction No. 2 as follows:

"2. I charge you that before the plaintiff can recover at your hands that the burden is upon him to establish (a) that his fall from the engine was caused by reason of the sheet or steel or apron being loose, and (b) that such condition was the result of actual carelessness or negligence upon the part of the defendant. And in determining these questions, the jury will not be permitted to guess, conjecture or surmise that his fall was caused by the loosened condition of the apron, or that such condition was the result of negligence or carelessness, but these facts must be established by competent testimony."

In appellee's fourth prayer, after pointing out the distinction between contributory negligence and assumption of risk, the court told the jury that "such dangers as are normally and necessarily incident to the occupation are assumed by the employee whether he is aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work, and safe and suitable appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are plainly observable and knowledge of the defect is not to be presumed." And also instructed the jury, in effect, that if they found that there was a defect which caused appellee's injury, and that such defect was not one of the risks ordinarily incident to the employment in which he was engaged, but resulted from the negligence of the appellant, its agents or employees, it would be the duty of the jury to find for the appellee, unless they found that the appellee was aware of the defect and the risk arising from it, or that the defect and risk were plainly observable to him.

Appellee's fifth prayer was as follows:

"5. You are instructed that the defendant is not a guarantor of the safety of the place in which the plaintiff was required to do his work, or of the appliances of the work, but it was its duty to see that ordinary care and prudence were exercised in this respect, to the end that the place in which the work was to be performed and the appliances of the work should be safe for the plaintiff, while engaged in his work. And you are further instructed that the plaintiff had the right to assume that it had performed such duties, and no duty devolved on him to make search for such defects, if any there were."

The appellant made a general objection to the rulings of the court in granting each of the...