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

• Decision Date: 10 May 1915
• Docket Number: 375
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. INGRAM
• Court: Arkansas Supreme Court

176 S.W. 692

118 Ark. 377

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

No. 375

Supreme Court of Arkansas

May 10, 1915

Appeal from Independence Circuit Court; R. E. Jeffery, Judge reversed.

STATEMENT BY THE COURT.

William Ingram sued the St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries sustained by him while helping to load some bridge timbers on a flat car. The facts are as follows:

In February, 1914, E. T. Ross, a bridge foreman of the defendant company, with the plaintiff and others of his bridge crew were engaged in removing some old guard rails from to bridges or trestles on defendant's line of road. The guard rails were made of 6x8 pine timbers, nine feet long, and were "dapped," that is, notched so that they fit down over the ties about two inches. When they were taken up the notched edges were trimmed down smooth so that the guard rails then were pieces of timber 4x8. There was a flat car standing on the side track near the trestle and the foreman directed his crew to take a push car and go down the side track about a quarter of a mile where some bridge piling lay and load the timber on the flat car. He directed them to use these guard rails as skids or running boards. The bridge crew loaded the push car with the piling and pushed the car down the track to where the flat car was placed. The members of the crew then took the guard rails and placed them between the push car and the flat car and rolled the piling over the skids from the push car into the flat car. The first load was unloaded safely. When the second load was brought up on the push car the plaintiff was standing at the north end of the car. Some of the other members of the crew picked up two guard rails to be used as skids. While the second piece of piling was being rolled along the skids the south skid broke. The north skid then slipped off the push car and the piling fell, striking the plaintiff on the leg and breaking it. The foreman of the bridge crew said that he looked at the guard rails before the bridge crew used them for skids and that he did not discover any defects in them.

A civil engineer, on behalf of the plaintiff, testified that pieces of piling of the dimensions stated by plaintiff's witnesses which caused the guard rail to break would weigh something over five hundred pounds and that sound pieces of pine of the dimensions of the guard rails would be able to sustain a weight several times that of the piling.

Other facts will be stated in the opinion.

The court directed a verdict for the plaintiff and the defendant has appealed.

Judgment reversed and cause remanded.

E B. Kinsworthy, McCaleb & Reeder and Troy Pace, for appellant.

1. No actionable negligence was established. The skids were simple appliances not embraced within the provisions of "Employer's Liability Act." The only duty resting on defendant was to exercise ordinary care in furnishing reasonably safe tools. 101 Ark. 119; 100 Id. 476; 17 S.W. 580; 72 Id. 712; 55 Ark 483; 108 Id. 383-4; Elliott on Railroads (2 ed.) § 1374; Labatt on Master & Servant, § 1671, foot note 1; 128 Ala. 434; 101 U.S. 22, 30; 143 Id. 452.

2. There is no competent evidence that the skid was defective. No presumption arises from the fact that the skid did break. 51 Ark. 467; 89 Id. 50; 90 Id. 326. The so-called expert evidence was inadmissible. 87 Ark. 242; Id. 257; 50 Id. 520; 108 Id. 392.

3. Plaintiff assumed the risk. 82 Ark. 534; 73 Id. 55; 93 Id. 153; 107 Id. 341; 95 Id. 562; 56 Id. 206; 90 Id. 407; 82 Id. 11; 172 S.W. 493; 100 Ark. 462; 82 Id. 17.

4. The action should have been abated because of the suit pending. 27 Ark. 315; 88 Id. 160. There was no vacation of the court. 104 Ark. 629; 72 S.W. 494; 79 Id. 494.

5. It was error to refuse to admit the evidence of Dr. Campbell. 95 Ark. 176; 47 Id. 180; 60 Id. 400; 58 Id. 353; 42 Id. 288; 60 Id. 556; 98 Id. 357; 106 Id. 101; 90 Id. 278.

6. In order to justify the assessment of damages for future or permanent disability it must appear that a continued or permanent disability is reasonably certain to result. 13 Cyc. 144; 90 S.W. 115; 90 Ark. 278, 284. No recovery can be had for "probable" future suffering or permanent injury. 97 Ark. 358, 365; 106 Id. 186.

7. It was error to give the peremptory instruction for plaintiff. Questions of negligence and assumptions of risk are ordinarily for the jury. Defendant also asked a peremptory instruction accompanied with ten other requests. If the peremptory instruction was refused the other prayers should have been granted. 89 Ark. 534; 90 Id. 23; 16 L. R. A. 189; 107 Ark. 158; 114 Ark. 376; 111 Ark. 309; 78 Id. 234; 168 S.W. 135.

8. Defendant was not required to seach for latent or hidden defects. 79 Ark. 440; White Pets. Inj. on R. R., § 374; Elliott on R. R. (2 Ed.), § 1348.

Dene H. Coleman and Jones & Campbell, for appellee.

1. The question of assumed risk does not enter into this case. (1) There is no evidence that plaintiff knew of the danger. (2) Under the Act (No. 88, 1911), the defense of assumed risk has been abolished. 87 Ark. 396; 77 Id. 458; 97 Id. 364; 95 Id. 295; K. C. Ry. Co. v. Huff, ms. op. Jan. 25, 1915.

2. The skid was not a simple tool within the meaning of the act. 127 Wisc. 318; 82 Ark. 372; 92 N.W. 535; 54 A. 996; 57 Id. 85; 108 N.W. 1016; 58 Id. 878. If it was, it was the master's duty to furnish a reasonably safe kind. Labatt on M. & S. (2 Ed.), p. 2479; 47 Am. R. 286; 127 S.W. 1153; 169 S.W. 940; 70 F. 669; 54 So. 252. The rule is never required where there is not equal opportunity of inspection. (70 S.E. 742; 88 Ark. 36; 14 Oh. C. C. 377; 49 N.E. 854); nor where the servant does not have the manual control of the tool. Labatt on M. & S. (2 Ed.), p. 2483; 84 N.E. 730; 60 S.W. 319; 107 Ark. 524; 88 Id. 36.

3. The peremptory instruction for plaintiff was correct. 15 Ark. 624; 3 Labatt, M. & S. (2 Ed.), p. 2810. A request for a directed verdict by both sides, unaccompanied by other instructions, submits questions of fact to the court. 114 Ark. 376; 100 Ark. 71; 105 Id. 25. Proof of a defect makes a prima facie case under the Act of 1911. The act is constitutional. 233 U.S. 324; 234 Id. 280.

4. There was no error in the admission or exclusion of expert testimony. 42 Ark. L. Rep. 101. Nor in excluding Dr. Campbell's testimony. 16 Cyc. 1088-1095, 1097-8; 90 Ark. 514. No prejudice resulted. 89 Ark. 483; 96 Id. 627; 85 Id. 376; 82 Id. 105; 80 Id. 376.

5. The former suit was properly dismissed. The court was in "vacation". Kirby's Dig., § 6168, 46 Ark. 229; 48 Id. 227; 63 Id. 1; 32 Id. 278; 82 Id. 193; Kirby's Dig., §§ 1320, 1531.

OPINION

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

It is insisted by counsel for the defendant that the action should have been abated because there was another suit pending to recover damages for the same injury in the Jackson Circuit Court. The facts upon which this assignment of error is based are as follows:

The plaintiff first instituted an action in the Jackson Circuit Court to recover damages for the injury which is the foundation of the present action. The trial of the case was begun on September 23, 1914, and after a portion of plaintiff's testimony had been introduced, by agreement of the parties the case was withdrawn from the jury and continued for the term. On the 3d day of October, 1914, the court adjourned until the 14th day of November, 1914, and on the 7th day of October, 1912, the plaintiff paid to the clerk of the Jackson Circuit Court the cost which had accrued in the action and the clerk entered of record a dismissal of the cause on motion of the plaintiff.

Section 6168 of Kirby's Digest, provides that the plaintiff may dismiss any action in vacation in the office of the clerk on the payment of all costs that may have accrued therein. It is insisted by counsel for the defendant that the word "vacation" has a technical meaning and means that period of time from the final adjournment of the court until its convening at the next term. We do not agree with counsel in this contention. Under section 6167 of the Digest the plaintiff may move the court to dismiss before final submission of the case to the jury.

Where the case is dismissed in vacation in the office of the clerk it is proper for the clerk to enter an order of dismissal at the request of the plaintiff. Lyons v. Green, 68 Ark. 205, 56 S.W. 1075.

Under section 6167 of Kirby's Digest the action may be dismissed without prejudice by the plaintiff as a matter of right at any time before final submission of the cause; and after the cause has been submitted, in the interest of justice, the court may permit the plaintiff to withdraw the submission of his case and to take nonsuit without prejudice. St. Louis Southwestern Ry. Co. v. White Sewing Machine Co., 69 Ark. 431, 64 S.W. 96.

The plaintiff having an absolute right to dismiss his case at any time before final submission to the court or jury trying the case, we think it is evident that the word "vacation" means any time when the court is not in session.

This suit was instituted under the Employers' Liability Act of March 8, 1911. See Acts of 1911, page 55. The first three sections of the act are as follows:

"Section 1. That every common carrier by railroad in this State, shall be liable for all damages to any person suffering injury while he is employed by such carrier, or, in case of the death of such employee, to his or her personal or legal representative, for the benefit of the surviving widow or husband and children of such employee; if none, then to such employee's parents; if none, then to the next of kin of such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or...