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

• Decision Date: 22 May 1916
• Docket Number: 14
• Citation: 187 S.W. 452,124 Ark. 298
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. INGRAM
• Court: Arkansas Supreme Court

187 S.W. 452

124 Ark. 298

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

No. 14

Supreme Court of Arkansas

May 22, 1916

Appeal from Jackson Circuit Court; John W. Stayton, Special Judge modified and affirmed.

Judgment modified and affirmed.

Troy Pace, for appellant.

1. This suit is based upon the Federal Employers' Liability Act and liability must be determined by it. 229 U.S. 146; Roberts, Injuries Interstate Employees, § 30; Thornton Fed. Employers' Act (3 ed), § 45. This is but a re-enactment of the common law liability of the master. 233 U.S. 492; 234 Id. 725. The general presumption is that the appliance was not defective, and if shown defective there is a further presumption that the master had no notice. The burden is on the servant to negative these presumptions and show negligence. 4 Thompson on Negl., § 3865; 7 Jur. (N. S.) 767. Negligence is not proven or inferred simply from the occurrence of the accident. 152 U.S. 684, 690. The burden is on the servant. Wood on Master and Servant, § 382; Sh. and Redf. on Negl., § 99; 2 Thompson on Negl., § 48; 1 White on Pers. Inj. on Railroad, § 79.

There was no evidence that the appliances had the appearance of being defective. 79 Ark. 437; 101 Id. 119; 100 Id. 476. Negligence must be proven. 88 Id. 465; 92 Id. 350; 99 Id. 265. A verdict for defendant should have been directed. 71 S.W. 540; 78 Id. 99; 93 Id. 682; 71 Id. 507.

2. No duty of inspection devolved upon the master. The skid was a simple contrivance or appliance. 72 S.W. 712; 88 Id. 36; 108 Id. 383.

3. No presumption of any kind arises against appellant from the fact that the skid broke. 51 Ark. 467; 74 Id. 19; 79 Id. 76; 90 Id. 326; 105 Id. 161.

4. Craft was not a competent juror. 102 Ark. 180; 60 Id. 221; 93 Id. 301.

5. Appellee testified that he could not walk without a crutch and yet the next day he walked freely without one. Appellee wilfully exaggerated and a new trial should have been granted. 51 L. R. A. (N. S.) 286, and notes; 37 Id. 429.

6. The verdict is excessive and it was error to declare the judgment a lien on the roadbed, etc., under section 6661, Kirby's Digest, because the year had expired. 93 Ark. 234, 238-9; 74 Id. 528, 532.

Gustave Jones and L. L. Campbell, for appellee.

1. Where an appliance breaks in consequence of a visible defect, or of a defect which should have been discovered by the master in the exercise of reasonable care, then the question of negligence is one for the jury. 4 Thompson on Negligence, § 2803. This principle is recognized by appellant in its 4th and 6th instructions.

2. "Ordinary care" and "reasonable care" are defined in Bouvier Law Dic., Vol. 3, 2426; 4 Id. 150; 113 Ky. 952. Appellant can not complain of the instruction on this subject.

3. The liability of the master for injury from defect in a simple tool is stated in 13 L. R. A. (N. S.) 668, 687; 40 Id. 832; 132 Ga. 221; 140 Mo.App. 524; 41 Ind.App. 588. Our court follows this rule. 117 Ark. 524.

4. These skids may have been reasonably safe for stakes, but that would not imply that they were reasonably safe for skids. 48 Ark. Law Rep. 316, 320; Ib. 242. Appellee had a right to rely upon the foreman's superior knowledge and there was no question of assumed risk.

5. No inspection was made of the skid. By the observance of ordinary care notice of the defect would have been brought home to the master. 51 Ark. 467; 92 Id. 350.

6. The supplemental motion for new trial was properly denied. 91 Ark. 362; 53 Id. 166; 60 Id. 257; 85 Id. 179. The verdict is not excessive and the judgment should be affirmed.

OPINION

SMITH, J.

This is the second appeal of this case. The opinion upon the former appeal will be found in 118 Ark. 377, and the facts as there stated are substantially the same as those developed at the trial from which this appeal is prosecuted, except in the respects to which attention will be called. At the trial from which the first appeal was prosecuted, appellee predicated his right of recovery on the Act of the General Assembly of this State approved March 8, 1911 (Acts 1911, p. 55), but on the remand of the cause appellant amended its answer and alleged that, at the time of his injury, appellee was employed in interstate commerce and that his right of recovery, therefore, depended upon the Federal Employers' Liability Act of April 22, 1908, and not upon the State statute under which the first trial was had. Appellee conceded that this was correct, and all the instructions given were drawn to conform to the Federal statute.

The difference between the two statutes, so far as it is material here to consider the difference, is that, under section 2 of our statute, the railroad company is deemed to have knowledge of the defect in its appliances, and proof of the existence of the defect is prima facie evidence of negligence; while, under the Federal statute, the common law rule in this respect has not been changed.

Under the State statute the servant need only to prove that he was injured by reason of a defective appliance to make a prima facie case; while, under the Federal statute, the presumption prevails, even after proof of the defect, that the railway company was not aware of its existence, and until it is shown that the railway company knew, or, in the exercise of ordinary care, should have known, of the defect, it is not charged with that knowledge.

At the trial from which the first appeal was prosecuted it was shown that appellee was injured by reason of the fact that a skid broke and threw a piece of piling on him. There was expert evidence showing that a sound skid should have safely supported a weight several times greater than that of the piling which caused the skid to break. Thereupon the court directed the jury to find for the plaintiff upon the question of negligence, and submitted to the jury the question only of the assessment of damages. We held that this was error, as, under the evidence, the jury should have been permitted to pass upon the question of the primary negligence of the company. Attention was called to the evidence of the foreman of the gang, of which appellee was a member, wherein he stated that "he observed the guard rails after they were taken from the bridges and that there were no defects in them." At the trial from which this appeal is prosecuted the foreman was not so definite on the subject of the inspection of the timbers from which the skids were made. Indeed, appellant undertook to impeach him by proof of contradictory statements on this subject contained in his evidence on the former trial. At this last trial he was asked, "How close did you ever get to the skids that were being used?" and he answered, "I suppose I passed them in my work laying on the ground." He was asked the following questions and gave the answers set out: "At that time did you give them any particular inspection?" A. "No, sir." "You just saw them like passing by this courthouse, and see them?" A. "Yes, sir." "Did you ever make inspection of the skid that broke with a view to see if it was defective?" A. "No, sir."

It appears, therefore, that the jury was warranted in finding that no inspection was, in fact, made.

Appellant insists, however, that the evidence is not sufficient to warrant the finding that reasonable care required that an inspection be made; and it also insists that an inspection such as would have been required by the exercise of ordinary care only would not have revealed any defect in the skid. In other words, if a defect existed the exercise of ordinary care in inspecting the skid would not have disclosed its existence.

As at the former trial, so in this, the proof showed that a skid the size of the one in use when appellee was injured should have safely supported several times the weight of the piling which caused it to break. The expert witness stated it should have sustained ten times the weight of the piling. The conclusion, therefore, is warranted that the skid was, in fact, defective.

It will be borne in mind that appellee was not employed at the skid which broke and he was not, therefore, afforded an opportunity to make an inspection of it.

Appellant insists that this case is controlled by the principle announced in the case of St. Louis, I. M. & S. Ry. Co. v. Andrews, 79 Ark. 437, 96 S.W. 183, in that an inspection which ordinary care only would have suggested, would not have revealed the defect in the skid.

The Andrews case contains a very clear declaration of the law on this subject. The master is required to make an inspection only when ordinary care suggests the necessity for it. And the inspection made must be such as ordinary care suggests as being necessary under the circumstances of the case.

Was the jury warranted, under the evidence in this case, in finding that such a duty rested upon appellant and that there was a negligent failure to discharge it? As has been shown the jury was warranted in finding that an inspection was not made, and no attempt is made to show that appellee was guilty of contributory negligence. The timbers were old and had been long in use on a bridge and thereby exposed to the action and effect of the weather. They had been so exposed for a sufficient length of time to suggest the necessity that they be replaced with newer timbers. They had been "dapped" or notched so as to fit down over the ties about two inches. Before they had been "dapped" they were 6x8 timbers. When they were removed these notches were trimmed down so that the timber became 4x8. The interval between the time they were "dapped" and afterwards trimmed down represents the time they were used as guard rails on the bridge, and the length of this time is not shown further than that it had become necessary to...