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

Decision Date16 November 1914
Docket Number239
PartiesST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SHARP
CourtArkansas Supreme Court

Appeal from Marion Circuit Court; George W. Reed, Judge; affirmed.

Judgment affirmed.

E. B Kinsworthy, McCaleb & Reeder and T. D. Crawford, for appellant.

The evidence does not justify the giving of instruction 2. It was improper to submit to the jury the question whether the rule had been openly, continuously and habitually disregarded for a number of years, when the proof shows it had been in operation only a little over a year when Sharp was injured. And the testimony did not justify submitting to them the question whether the nonobservance of the rule was known to the appellant or to Sharp's superior officers, or was of such a long period and of so frequent occurrence as to justify the belief that appellant must have known and acquiesced in its nonobservance.

A rule made by a railroad company solely for the safety of its servants, will be enforced unless it is shown that the railroad company has insisted on a disregard of the rule in order to hasten the work. 98 S.W. 1070.

Unless the evidence shows that, subsequent to the time the master mechanic lectured the men upon the necessity of obeying the rule, which, the testimony shows, was but a short time prior to Sharp's injury, there was habitual disregard of the rule by the employees, and knowledge thereof was brought home to the master, there was no testimony to submit this issue to the jury. 97 Ala. 187; 110 Ala. 143; 47 F. 204.

The instruction took from the jury consideration of the defense of contributory and assumed risk, in so far as they were based upon Sharp's disobedience of the rule. 88 Ark. 20; 14 L. R. A. 552.

Jones & Seawell and Hamlin & Seawell, for appellee.

1. It was a question of fact for the jury to determine from the evidence whether the rule had been customarily and habitually disregarded, how long the custom had prevailed, and whether such custom was known to and acquiesced in by the appellant and the jury's verdict is conclusive upon that question. 77 Ark. 410; 54 Ark. 299; 84 Ark. 380; 92 Ark. 563; 48 Ark 348; 250 Mo. 245; 164 Mo.App. 543; 5 Thompson on Neg., § 5404.

2. We think there was ample evidence on which to base instruction 2 complained of. Appellant's contention that the rule had not been violated a sufficient length of time to give rise to the custom of nonobservance is untenable, in view of the proof that there was an oral rule in force for several years prior to the promulgation of the printed rule about eighteen months before the accident, and that both rules were habitually disregarded and violated.

The instruction is right and has been approved by this court. 77 Ark. 409; 100 Ark. 119; 83 Ark. 70.

OPINION

McCULLOCH, C. J.

Plaintiff 's intestate, W. N. Sharp, worked for defendant railroad company in the yards at Newport, Arkansas, as car inspector and repairer; and, while in the discharge of his duties, received personal injuries from which death resulted on the following day. He was survived by his widow and two children, and this action was instituted by the widow, as administratrix of the estate, to recover damages resulting from decedent's injury and death. Sharp was working underneath a freight car, repairing an air pipe called the train-line, when a car which was kicked in on the same track by the switch crew ran against the car underneath which he was working and caused it to run over him and cut off one of his legs. The car which he was repairing was one used at the time in interstate commerce. It was consigned at Kansas City, Missouri, to Tuckerman, Arkansas, and when it arrived at Newport on the day before Sharp's injury, the defect was discovered and it was left out of the train for repairs. Sharp and a fellow-worker named Ellen composed the day shift of car repairers who worked under a foreman; and on the day the car was left at Newport, they did some work on it. That was Saturday afternoon, and the next morning, Sunday, the car was shifted to another position and Sharp and his companion resumed their labors, when the injury occurred.

The plaintiff does not in her complaint expressly declare upon the Federal statute known as the "Employers' Liability Act." Nor does the complaint even contain an allegation that Sharp was engaged in work on a car used in interstate commerce; but that fact is set forth in the answer and the case was tried under the terms of that statute. The rights of the parties must therefore be determined by the terms of the Federal statute. The plaintiff asked recovery in one count for the benefit of the estate, and the other for the benefit of the next of kin. But under the terms of the Federal statute, the recovery on both elements of damages must be for the benefit of the widow and next of kin, and can in this case be so treated. St. Louis & S. F. Rd. Co. v. Conarty, 106 Ark. 421, 155 S.W. 93.

The alleged act of negligence relied on for recovery in the case is that of the members of the switch crew, who, it is charged, with knowledge that Sharp and his companion were at work there, negligently kicked the car in on the track and against the car beneath which they were at work. The contention of the defendant, on the other hand, is that there was a rule of the company requiring the car repairers to protect themselves by the use of blue flags which would give warning of their presence under cars; that deceased violated the rule by failure to put out flags; and that his own act of negligence was the sole cause of his injury. Plaintiff met this contention by attempting to prove that there was a uniform and habitual violation of the rule, within the knowledge of the officers and servants of the company whose duty it was to enforce it, which amounted to a total abrogation of the rule; that the customary method of work in the yards at Newport was that when a car was placed in position or spotted on the sidetrack for repairs, the members of the switch crew must refrain from running cars on the track until they receive notice that the repairs had been completed; and that in this instance the switch crew knew that the car had been placed there for repairs, but, without notice, kicked a car in on the sidetrack against this car. The defendant established by proof the fact that it had promulgated a rule that "a blue flag by day and a blue light by night, at one or both ends of an engine, car or train, indicates that workmen are under or about it," and that "workmen will display blue signals, and the same workmen are alone authorized to remove them." It was proved, also, that Sharp, when he took service with the company, about a year before his injury and death, signed a statement acknowledging receipt of a copy of the rule. The defendant also adduced testimony of numerous witnesses to the effect that the rule had never been disregarded or abrogated, and that the constant effort of the company was to enforce it. The plaintiff adduced testimony of numerous witnesses, men who worked in the yards at Newport, to the effect that this rule was always disregarded and that the foremen of the car repairers, when frequently importuned to furnish the flags, expressly refused to do so and instructed the repairers to disregard it. There were two switch crews--a day shift and a night shift--in charge of a foreman; and also two repair crews or shifts working under another foreman; and it was proved by affirmative testimony that the foreman of each of these crews knew of this habitual disregard of the rule and acquiesced in it, the proof being that some of them expressly declined to regard the rule and gave directions to the workmen to disregard it.

We think the testimony on the part of the plaintiff was...

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