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

• Decision Date: 07 December 1914
• Docket Number: 34
• Citation: 171 S.W. 1187,115 Ark. 529
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MORGAN
• Court: Arkansas Supreme Court

171 S.W. 1187

115 Ark. 529

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

No. 34

Supreme Court of Arkansas

December 7, 1914

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

Judgment reversed and cause remanded.

E. B Kinsworthy, Campbell & Suits and T. D. Crawford, for appellant.

1. It was not incumbent upon appellant to show that it did not discover appellee's presence upon its track in time to avoid injuring him. The injury having occurred prior to the amendment to the lookout statute, appellant established a sufficient defense to bar recovery when it showed that he was guilty of contributory negligence, unless other facts were shown sufficient to overcome the effect of the contributory negligence. The burden was, therefore, then upon appellee to show that appellant discovered him upon its track in time to avoid injuring him. 69 Ark. 382; 65 Ark. 233; 62 Ark. 235. See, also, opinion on former appeal, 107 Ark. 218, from which it appears that the issue in the case was as to whether or not appellant's employees discovered appellee's perilous position in time to avoid injuring him.

2. Instruction 5 is erroneous. (1) There is no testimony to bring the case within the rule announced in the Hambright case, 87 Ark. 614. Nothing to show that the physician was guilty of any duplicity in advising plaintiff that he would be all right in a few days, if he gave any such advice. The Hambright case is authority only for the proposition that if the doctor knowingly makes a false statement, this is fraud and does not hold that an honest mistake on his part would amount to fraud, or would avoid a release. (2) It errs in its charge with reference to the promise of a permanent position as section foreman, the same being inconsistent with the terms of the written release, and, moreover, there being no proof that at the time the alleged promise was made there was a present intention not to do so. 156 S.W. 967; 132 Ill. 327; 108 Wis. 457; 128 Ill. 9; 15 Ind. 11; 42 Ill.App. 548; 6 Cowen, 346; 14 Am. & Eng. Enc. of L., 48; 21 Ark. 342; 19 Wall. 146; 127 Wis. 451; 145 Mass. 86; 4 Am. St. 282; 10 L R. A. (N. S.) 640.

3. Clearly, under the opinion delivered on the former appeal, the court erred in refusing to give appellant's requested instruction No. 24. No other instruction given covers the point.

Jones & Campbell, for appellee.

1. If a preponderance of the evidence showed that appellee was injured by the running of a train, there can be no doubt that thereupon a presumption of negligence on the part of appellant arose.

In view of the facts shown in evidence, it could not be said as a matter of law that appellee was guilty of contributory negligence. Moreover, contributory negligence does not destroy a presumption of negligence on the part of the defendant. 105 Ark. 188.

2. There is no error in the instruction with reference to the release. The evidence as to the facts surrounding the execution of the release, was conflicting and irreconcilable. The jury's verdict establishes the correctness of the plaintiff's version, and in the light of that evidence the Hambright case is controlling. 87 Ark. 614. See, also, 82 Ark. 105; 95 Ark. 150.

3. Instruction 24 was abstract, and, if given, would have been prejudicial to appellee. When the engineer saw appellee in his attempt to remove the speeder wheel and when he was only distant about three hundred feet, the only presumption the engineer could indulge was that Morgan might not get the wheel clear in time. 90 Ark. 403.

MCCULLOCH, C. J. WOOD and HART, JJ., dissent.

OPINION

MCCULLOCH, C. J.

This is an action based upon alleged liability for personal injuries done to plaintiff while working as section foreman in the employment of the defendant railway company, and the case has been here on a former appeal. 107 Ark. 202. After being remanded, there was another trial which resulted in a verdict and judgment in favor of the plaintiff, from which another appeal has been prosecuted. The testimony was, on the second trial, substantially the same as on the first, with one or two exceptions which will be mentioned later. The facts are set out in detail in the former opinion, and need not be repeated.

The substance of the case is that the plaintiff was a section foreman, and was riding a speeder along the part of the track composing his section, and was accompanied by another man behind him on the speeder. They were overtaken by a passenger train, and on discovering its approach, they stopped the speeder and got off, and then attempted to remove the speeder from the track. They got it partially off of the track, but one of the wheels hung under the rail, and while they were still attempting to remove it, the plaintiff was struck by the train, and serious injury was inflicted. Plaintiff was carried to a hospital, and after he was discharged, he made a settlement and executed a release in consideration of the payment of $ 45. He contends that the release was procured by fraud, deception and misrepresentation, and on that account he is not bound by it. The former opinion became the law of the case, and this court, as well as the trial court, is bound by it so far as it applies to the questions raised on this appeal. The testimony adduced by the plaintiff at the last trial, so far as it relates to the circumstances attending the injury, is the same as before; but at the former trial, the defendant introduced the fireman and engineer as witnesses, and in this case adduced no testimony at all. The testimony of the plaintiff as to the circumstances under which the release was executed is slightly different from that given at the former trial.

It will be seen from a consideration of the facts, as set out in the former opinion that according to the undisputed evidence, the plaintiff and his companion saw the train as it approached and got down from the speeder, but the plaintiff was injured while they were attempting to remove the speeder from the track. It is also undisputed that the men on board the train must have seen the plaintiff engaged in attempting to remove the speeder, and we said in the former opinion that the only question in the case was "whether the enginemen discovered appellee to be in a position of peril from which he could not extricate himself in time to have prevented the injury to him and failed to use proper care to avoid the injury after such discovery." In other words, the turning point of the case was then, and is now, whether or not the trainmen were guilty of negligence after they discovered the plaintiff's peril.

It is contended in the first place that the court erred in giving an instruction to the effect that if the plaintiff was injured by the running of the train in this State, "then the presumption is that it was due to the negligence of said company." It is insisted that the instruction is in conflict with the decisions of this court on the subject of burden of proof in cases of this kind, and also in conflict with the following statement in the former opinion: "The burden of proof was upon appellee to show, in order to recover damages, that the employees in charge of the train discovered his perilous position in time to have avoided injuring him, and negligently failed to use proper means to do so after discovering his peril." While this language is found in the opinion, it was not meant to lay the rule down broadly that under every phase of this case the burden of proof is upon the appellee, nor that the proof at any stage did not make out a prima facie case of negligence. That view of it would put the opinion in direct conflict with other decisions of this court. We held in St. Louis, I. M. & S. Ry. Co. v Standifer, 81 Ark. 275, 99 S.W. 81, that where an employee of a railroad company is struck by a train and injured while riding a hand-car, a prima facie case of negligence is made against the company, and that case has been followed in later ones. It is true that proof of contributory negligence on the part of an employee or of a traveler at a crossing overcomes the presumption of negligence, and places the burden on the injured party to show that there was negligence on the part of the servants of the company after discovery of the peril. But the burden is always upon the company to prove contributory negligence, and until it does so, the prima facie case arising from proof of the injury stands. A fair interpretation of the language quoted from the former opinion, when considered in the light of the remainder of the discussion therein, is that if the plaintiff was guilty of contributory negligence in remaining on the track, the burden rested on him to show that the...