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

• Decision Date: 12 June 1916
• Docket Number: 48
• Citation: 187 S.W. 920,124 Ark. 437
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STEWART
• Court: Arkansas Supreme Court

187 S.W. 920

124 Ark. 437

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

No. 48

Supreme Court of Arkansas

June 12, 1916

Appeal from Lincoln Circuit Court; A. H. Rowell, Special Judge reversed.

Judgment reversed, and cause remanded.

E. B Kinsworthy, for appellant.

1. A verdict should have been directed for appellant. There was no evidence to sustain the verdict. Plaintiff violated the rules of the company which caused the accident. 100 Ark. 526, 533; 97 Id. 443. Stewart's testimony is absolutely contradicted by the physical facts. 100 Ark. 380; 157 F. 347; 86 P. 472; 74 Kans. 256. Failure to obey the rules was negligence. 100 Ark. 380; 140 S.W. 544; 120 Ark. 61; 52 Ark Law Rep. 312; 119 Ark. 349; 174 F. 352. Neither custom nor order can justify a servant in doing an act which is negligence per se. 212 Mo. 338; 244 Mo. 647; 193 Id. 715; 176 Id. 547; 87 Id. 295; 94 Ala. 285; 109 Id. 256; 95 U.S. 439; 43 Kans. 145; 56 Va. 710; 161 F. 722; 249 Mo. 509; 110 Id. 394; 60 F. 370; 23 L. R. A. (N. S.) 768; 157 F. 347; 80 Id. 495. "Under control" means to stop within vision. 86 P. 1053; 200 F. 359.

An employee has no right to violate a rule of the railroad company, even if ordered to do so by an officer or superior. 22 S.E. 833, 836, par. 4; 27 N.E. 110; 145 N.Y. 190. The "high ball" had nothing to do with the accident.

2. The court erred in refusing to give defendant's instruction No. A. No other instruction was given covering this point. The violation of a rule by an employee is negligence per se. 174 Fed. and cases supra; 100 Ark. 380.

3. The high ball did not give the plaintiff any authority to violate the rules of the company. 145 N.Y. 190; 63 F. 228; 60 Id. 370; 157 Id. 347; 200 Id. 359; 86 P. 1053; 20 So. Rep. 67.

4. The court erred in refusing to give instruction No. F for defendant. 119 Ark. 349; 178 S.W. 320; 200 F. 359; 52 Ark. 45.

5. It is error to refuse a specific instruction correctly and clearly applying the law to the facts in a case, even though the law, in a general way, has already been covered. 69 Ark. 134; 82 Ark. 499; 87 Id. 243; 96 Id. 206.

6. The high ball was not the proximate cause of the injury. If subsequent to the original negligent act, a new cause intervened * * * the original negligence is too remote. 87 Ark. 576; 97 Id. 276; 104 Id. 506; 91 Id. 260.

7. An instruction which ignores a material issue about which the evidence is conflicting is misleading and prejudicial. 93 Ark. 564.

8. The defense of assumed risk has not been abolished under the Federal Act. 177 S.W. 875.

9. The verdict is excessive.

Pace, Seawell & Davis, for appellee.

1. The verdict is sustained by the evidence. The yardmaster was in complete charge of the yard; appellee obeyed the signal and did not violate any rule of the company. He was running under control. Further, the rules of the company had been abrogated by customary violation when a highball signal was given. The finding of the jury is final. 77 Ark. 1; 115 Ark. 308; 88 Id. 204; 12 Cyc. 1270. Disobedience of a rule in compliance with the instruction of a representative of the master does not constitute contributory negligence. Ib. 1274; 194 U.S. 136; 88 Ill.App. 614. See also 94 Tex. 100; 130 Mo. 657; 92 Id. 359; 118 Ky. 166; 106 Minn. 281; 132 Mo.App. 380; 37 Mont. 575; 214 Pa.St. 252; 214 Pa. 252; 125 S.W. 45; 41 Kans. 661; 89 Ind. 453; 3 Labatt, Master and Servant (2 ed.), 1137; 98 Ark. 232; 202 U.S. 438; 227 Id. 559; 196 Mass. 705.

Habitual violation of a rule is an abrogation, if known to the master. Cases supra; 77 Ark. 405; 166 F. 1; 105 Ark. 334; 88 Id. 204.

2. But the company is liable, even if the act of the yardmaster in giving the highball signal did not abrogate the rule. Under the Federal statute contributory negligence is not a bar. 115 Ark. 316. The act of the yardmaster was negligence for which the master was liable.

3. The cases cited by appellant do not apply. There was no error in refusing the instructions asked by defendant. No. A invades the province of the jury. 101 Ark. 376; 188 F. 55; 26 Cyc. 1269; 25 L. R. A. 320. It is misleading. No. 7 is not the law. 84 Ark. 74; 105 Id. 334; 88 Ark. 204; No. B ignores the evidence as to the abrogation of the rules. No. F is abstract and misleading. No. 17 made the act of appellee in failing to keep a lookout negligence. 98 Ark. 202, etc.

4. Appellee's instructions were correct. 115 Ark. 308. The court left the question of negligence, contributory negligence, etc., to the jury. 91 Ark. 388; 82 Id. 11; 87 Id. 443; 92 Id. 554. Appellee was not employed in interstate commerce at the time of the injury. 233 U.S. 473; 238 Id. 260.

5. The verdict is not excessive. 105 Ark. 533; 114 Id. 224; 113 Id. 265.

MCCULLOCH, C. J. HART, J., concurs.

OPINION

MCCULLOCH, C. J.

The plaintiff, Charles Stewart, was engaged in the service of the defendant as a locomotive engineer and received personal injuries while he was running a train through the railroad yards at Little Rock. This is an action against the company to recover compensation for his injuries, which are alleged to have been caused by negligence of other servants of the company. It is conceded that the service being performed by the plaintiff at the time of his injury was connected with interstate traffic so as to bring the case within the operation of the Federal Employers' Liability Act. Plaintiff was bringing an extra freight train from Pine Bluff to Little Rock, and as he came through the Little Rock yards his fireman discovered a switch engine on the track ahead, and when plaintiff discovered that a collision was impending, he shut off the throttle and put on the emergency brakes and jumped from the engine, and in doing so he fell upon the edge of the track and received serious injuries.

Plaintiff's testimony was that he was coming along at a speed of eight or nine miles an hour, and that as he approached a curve of the track the yardmaster came out from the yard office and first looked around the curve and then turned and gave him the "high ball" signal, which meant that the track was clear and that he could proceed expeditiously, and that as the engine started around the curve the fireman discovered the switch engine ahead and called out to him "jump," which he did, after having, as before stated, shut off the throttle, put on the brakes and opened the sand. Plaintiff's train was running north and the switch engine was coming south. Plaintiff's fireman stepped from the engine when it lacked a few feet of striking the switch engine and was not injured. The engineer on the switch engine and the other operatives also escaped unhurt. The testimony of the plaintiff tends to show that his engine would have come to a stop before it reached the switch engine if the latter had been properly controlled, but that the switch engine was allowed to run on and produce the collision. On the other hand, all the other eye witnesses testified that the switch engine came to a stop and turned backward and ran about forty-five feet before plaintiff's engine struck. The testimony of the plaintiff also tended to show that the yardmaster could have seen the switch engine from the point where he was standing when plaintiff says that the "high ball" signal was given.

Mr. Brown, the yardmaster, was introduced as a witness, and testified that he did not give the plaintiff any signal at all, but that the plaintiff's engine came along, running at a speed of at least fifteen miles an hour, and that just before it reached the yard office he heard the switch engine whistle back up the track and he looked around and it was in sight and appeared to have come to a stop, and that when he looked toward plaintiff's engine again he saw the plaintiff making the jump. Other testimony adduced by the defendant tended to show that the plaintiff was running his engine at a rate of from fifteen to twenty miles an hour when he approached the curve and jumped from the engine.

Certain rules of the company, regulating the handling of trains through the yards, were introduced in evidence and they are relied on as establishing negligence on the part of the plaintiff in violating those rules.

Rule A-12 reads in part as follows: "Freight trains will not exceed a speed of ten (10) miles per hour between Argenta and South yard limits East Little Rock yard."

Rule A-16 reads as follows: "Second and inferior class trains and extras must run under control through yard limits at Little Rock, Argenta, East Little Rock, Pine Bluff and McGehee. In case of accident, responsibility rests with the approaching train."

Those rules were in force at the time of the injury, and plaintiff had a copy of the book of rules with him on his engine and was familiar with them.

It is agreed that running "under control" means to run trains so as to stop within vision, or, in other words, to keep the engine under such control that it can be stopped within view of any object which may appear ahead on the track. Plaintiff as train was "the approaching train" within the meaning of the rules. It was also conceded that the switch engine belonged to the same class of trains and had equal right-of-way, that the switch engine was rightfully on the main track at the time of the collision, and that the only limitations upon the right to operate it there were those prescribed by the rules herein mentioned.

In order, however, to obviate the force and effect of the rules as written, plaintiff undertook to show that a custom had been built up whereby the giving of the "high ball" signal by the yardmaster was construed to be an assurance that the track was clear, and as a direction to hurry on without regard to the rule requiring that the engine be kept under control. There is a sharp conflict...