St. Louis, Iron Mountain & Southern Railway Co. v. Carter

• Citation: 164 S.W. 715,111 Ark. 272
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. CARTER
• Decision Date: 02 February 1914
• Court: Supreme Court of Arkansas

164 S.W. 715

111 Ark. 272

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

Supreme Court of Arkansas

February 2, 1914

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

STATEMENT BY THE COURT.

Al Carter brought this suit against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries sustained by him while in the employ of said company, by reason of its negligence. The facts and circumstances attending the injury, as detailed by the plaintiff himself, briefly stated, are as follows:

On the 24th day of July, 1912, he was foreman of a grading gang of the railway company and was at work about a mile above Swifton, in Jackson County, Arkansas. He saw a freight train approaching and directed his crew to leave the track and get out of the way of the approaching train. He left the dump on which he was working and stood with one foot on the edge of the dump about ten feet away from the passing train. As he was standing on the edge of the dump he saw a piece of ice which looked to him like it was falling from the train. He turned and tried to get away, but the ice, as it struck the ground, bounded in the direction the train was moving and struck him on the head, severely injuring him. On cross examination, Carter denied that he had motioned to the brakeman to throw him the ice, and says that he did not see it until it began to fall from the train. Other witnesses for the plaintiff testified that they saw the ice when it struck Carter and that the ice would weigh about fifty pounds; that Carter was rendered unconscious by the blow; that the ice hit him on the left shoulder and side of his head; that the best they could tell there were two men up on the car and it looked like they pushed or kicked the ice off. They said that Carter did not motion the train crew to throw the ice to him. It was also shown by the plaintiff that he had instructions to clear the track of his men when he saw a train approaching but not to take them too far away. This was in order that he might be able to get them back to work as soon as possible after the train passed. The plaintiff was standing clear of the moving train and would not have been hurt by it if the ice had not been thrown from the train. About half of the train had passed when the plaintiff was struck with the ice.

J. L Oglesby testified for the defendant as follows: In the month of July, 1912, I was brakeman on a fast freight train that was carrying peaches and cantaloupes from Argenta to Hoxie. I dropped a piece of ice off at a point beyond Swifton, where some section men were working, and it hit the ground and bounced a time or two and struck some one on the ground. We had run out of ice in the caboose, and I had gone up over the train to get some out of the car, and on my way back to the caboose with the ice this man on the ground motioned to me to let him have it, and I dropped it off. The conductor saw me on my way for the ice and was on top of the train about a car length from me when I dropped the ice off. The rules of the railway company provided that while on trains brakemen are under the direction of the conductor; that it is their duty to assist the conductor in all things necessary for the safe and prompt movement of the train. The brakemen are at all times under the direction of the conductor. It is also the duty of the brakeman, if he finds running boards or anything that is likely to fall off the train, to throw the same off of the train between stations at a point where they are not likely to hurt any one. He also stated that a part of the brakeman's duties was to keep a lookout and see that everything was running safely. I suppose the conductor was looking at me when I threw the ice off, but he never gave me any instructions in regard to it. I did it as a matter of accommodation to the section men at work on that hot day.

Testimony was also adduced by the railway company tending to show that Carter had been directed to get his men and team clear of all moving trains, and that this direction included himself. It was also shown that it was against the rules of the company for the train crew to take ice out of the refrigerator cars for any purpose whatever.

Other evidence will be referred to in the opinion. The jury returned a verdict for the plaintiff in the sum of $ 4,500 and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

Judgment affirmed.

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

1. Instruction No. 3 on the court's own motion was error. It ignores the defense made by defendant. The evidence shows the negligence complained of was that of a brakeman not within the scope of his authority. 81 Ark. 372.

2. When a master promulgates a rule for the safety of servants and one is injured while in violation of this rule, and on account thereof the court will declare him, as matter of law guilty of contributory negligence. 96 Ark. 464.

3. The question whether the negligence of the brakeman was within the scope of his authority was for the jury. 81 Ark. 368; 87 Id. 540; 87 Id. 524.

4. The court erred in its remarks to the jury. 78 Ark. 132; 58 Id. 282.

Hal L. Norwood and Grant & Mack, for appellee.

1. The case of 81 Ark. 372 does not apply. In that case the injured party was a trespasser. In this case the injured man was not a trespasser; he was near the track in the discharge of his duty. 4 Labatt, § 1566 (2 ed.), 4727.

2. The test is whether the master had the right to control the action of the person doing the wrong. 1 Bailey, Per. Injuries (2 ed.), 31; 132 U.S. 518.

3. The company must exercise ordinary care to avoid injuring persons rightfully on its premises and near the track. 96 Ark. 472; 94 Id. 251; 63 Id. 640.

4. Contributory negligence is no defense where the peril was discovered in time to avoid injury. 99 Ark. 422; 86 Id. 590. The brakeman saw Carter and knew his perilous position. 86 Ark. 590; 5 Thompson on Neg., § 5403.

5. No specific objection was made to the court's statement to the jury. 93 Ark. 214; 96 Id. 540; 98 Id. 234. No prejudice, however, resulted and the burden was on appellant to show prejudice. 97 Ark. 86; 98 Id. 86.

6. It is negligence for an employee to break the rules of the company. 96 Ark. 464. The verdict is not excessive.

OPINION

HART J., (after stating the facts).

It is first contended by the defendant that the court erred in giving to the jury on its own motion instruction No. 3, which is as follows:

"If you find from a preponderance of the evidence in this case that, at the time in question the plaintiff was at work in the employment of the defendant as foreman of a grading crew of laborers on its line of railway; that, while he was so engaged, one of defendant's freight trains was about to pass, and he stepped to the side of the track and occupied a position where his duties required him to be, and while in such position and the train was passing the defendant's employees and servants operating the train, negligently, and without the exercise of ordinary care and caution, caused, or permitted, a piece of ice to fall from the top of one of the cars in the train, which struck and injured plaintiff, if you find he was injured, then, you should find for the plaintiff; unless, however, you should further find that plaintiff, by his own acts of negligence contributed to the injury complained of, in which event you should find for the defendant."

Counsel for defendant contend that the instruction was erroneous because the injury complained of was the result of the personal wrong of the brakeman who threw the ice off while acting outside of the scope of his authority. In support of their contention, they rely on the cases of St. Louis Southwestern Railway Company v. Bryant, 81 Ark. 368, 99 S.W. 693, and St. Louis, Iron Mountain & Southern Railway Company v. Lavendusky, 87 Ark. 540, 113 S.W. 204; but we do not think these cases sustain the position taken by counsel for defendant. In both cases it was held that, at the time the injury complained of was inflicted, the employees of the railway company were not in the exercise of any duty they owed to their employers, and this was made the turning point in both cases, for in each case the plaintiff was a trespasser. The plaintiff being a trespasser, the court said the railroad company owed him no positive duty of care and only the negative duty to exercise ordinary care not to injure him after his perilous position was discovered.

In the Bryant case the foreman of a bridge gang threw a water-cooler from a construction train in which he was riding and hit a trespasser on the track. He was not engaged in operating the train, and his duties did not require him to keep a lookout for persons on the track. In the Lavendusky case, the yardmaster threw a piece of coal off of a freight train and hit the plaintiff, who was a trespasser on the railway track. The court held that the act of the yardmaster was a tort outside of the scope of his authority, for which the railway company was not liable, and that plaintiff being a trespasser, the railway company owed him no positive duty to exercise ordinary care to protect him from injury. The case of Fletcher v. Baltimore & P. Rd. Co., 168 U.S. 135, 42 L.Ed. 411, 18 S.Ct. 35, was cited and distinguished. In the Fletcher case the plaintiff was injured by a stick of wood thrown from a passing train by one of the servants of the railroad company. There was evidence tending to prove that it had been the custom of the employees of the railroad to throw off pieces of firewood while the train passed such points on the railroad as were nearest to their homes whence the wood was carried off by...