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

• Decision Date: 28 October 1912
• Citation: 151 S.W. 699,105 Ark. 533
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BROGAN
• Court: Arkansas Supreme Court

151 S.W. 699

105 Ark. 533

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

Supreme Court of Arkansas

October 28, 1912

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

STATEMENT BY THE COURT.

Appellee was in the employ of the appellant as a locomotive fireman. On October 17, 1911, he was engaged in firing on a locomotive engine in the Argenta yards while switching freight cars. He had never before worked in that yard as a switch engine fireman, nor had he ever worked as a switch engine fireman on any other road. He was not familiar with the tracks in the Argenta yards. He had been firing on the main line of the Iron Mountain until he was called on the night of October 17 to fire on the switch engine in the Argenta yards. He went on duty that night about 9 o'clock. Had to keep firing right along all the time to keep steam and water in the engine. He had no time to look out. Had put a fire in the engine and got up in the seat, and his eyes were blinded from the fire and heat. Five cars were attached to the head of the engine. They were moving towards the north. He didn't know what kind of cars were coupled in front of the engine, other than that there was a box car next to the engine. That car was as high as the top of the headlight on the engine. The distance between the end of the box car and the headlight on the engine was about two feet. The box car, appellee says, caused the headlight to reflect back in his eyes. He could not have seen the car standing out at the side and ahead of the engine because of the light reflecting in his eyes. The signals for working purposes were given on the engineer's side. As his engine was propelling, at a slow speed, the cars ahead of it along the lead track, the cab of the engine collided with a car standing on the side track leading out from the lead track on appellee's side of the engine. The cars ahead of the engine on the lead track had passed the car standing on the side track, but the cab of the engine cornered it. When appellee heard the crash he endeavored to get out through the front window, but his leg was caught, and he sustained serious injuries, which will be hereinafter described.

Appellee did not know that the box car with which the engine collided was so close to the lead track on which the engine was moving. This car had been dropped into the side track from the lead track and left there by the engine on which the appellee was at work. After the box car had been dropped in on the side track from the lead track, the engine had pulled back onto the lead track with the remaining five cars of the string, and as these cars were pushed forward by the end of the side track the collision occurred by which the appellee was injured.

The foreman of the switch crew directed the movement of the switch engine and the location of the cars. He had placed the car in the position where it was at the time it struck the engine. He states that the appellant company had rules covering the placing of cars in the clear on side tracks. The rule required that "conductors must see that brakes are set on cars they leave on sidings, and when the siding is on a grade they must, when practicable, couple all the cars together; and, in addition to setting the brakes, the wheels must be blocked and safety switches properly adjusted. When not in use safety switches must be left open. In switching trainmen must know that brakes are in good order before cutting off cars."

The rule refers to conductors, and in switch yards the yard foreman is the same as the conductor. There was a down grade there to the east from the south end. The grade was such as to cause the cars to go away from the lead, and the engine was headed east when they kicked the car in on the track where it stood when the collision occurred. The foreman stated that, according to his judgment, the rules of the company were complied with in placing the cars there that night. The down grade would be to prevent the car coming out if moving. The brake would not have to be set on that car. If the brakes were set on the cars below, they would hold that car. He went down and got on top of the rail, which was the custom and the rule, and stood on top of the rail and held his hand out, and ordinarily if it cleared his fingers holding his arm out straight as he did that night, it would clear a car or an engine. He adopted the usual method that they had adopted and been using for twenty-seven years to see if it would pass, and in his judgment he thought it would. The brakes were not set on the box car that collided with the engine, nor was any block placed under the wheel on the end of the car towards the lead on which the engine was moving. He stated that it was not necessary. He kicked the car in on the track, which consisted in giving a cut of cars a start and then cutting the car loose from the rest and it rolls into the track. On that occasion he kicked the car in and walked up the lead and stood on the rail and held his hand out, taking the precaution above mentioned. The witness testified that the box car would "have no reflection on a person's eyes looking ahead. If you were looking directly at the light alone, it would; but where you are looking at the reflection, it does not."

Appellee brought this suit on November 6, 1911, and in his complaint he alleged that "the cab in which he was working was struck by a car that had been negligently left standing on the side switch north of the one in which plaintiff's engine was running, and the left side of the cab was crushed in upon the plaintiff and seriously injured him;" that "said accident and injury was caused by the negligence of the defendant and its servants in placing and leaving on the side track, so near the lead switch, the car which struck the locomotive on which plaintiff was at work, and in negligently directing the train on which plaintiff was working to move into the side switch."

The defendant answered, denying the material allegations of the complaint, and setting up that the plaintiff was injured by his own negligence in failing to keep a lookout, which it was his duty to do; and also setting up that plaintiff "was as well informed of the dangers from cars being left too close as any of defendant's other servants, and assumed the risk of such injury as might occur thereby."

The above are substantially the facts on the issues of negligence, contributory negligence and assumed risk. The court granted and refused requests for instructions to which appellant duly excepted, and which we will comment upon in the opinion. The jury returned a verdict for $25,000 judgment was entered for that sum in favor of the appellee and this appeal has been duly prosecuted. Other facts stated in opinion.

Judgment affirmed.

E. B. Kinsworthy, W. V. Tompkins and R. E. Wiley, for appellant.

1. Where the complaint alleges negligence on the part of the defendant in a certain particular which must be sustained by evidence, it is a question for the jury to determine whether there was negligence as alleged, and an instruction which assumes that the defendant was negligent in the particular alleged is erroneous. A later instruction submitting that question would not cure the error first committed, because it could not be known which instruction the jury followed. 96 Ark. 311, 314; 93 Ark. 564, 573.

Appellee's instructions given are further erroneous in that they submit the case on the theory that appellant had the absolute right to presume that his fellow-servants would do their duty. 89 Ark. 522, 536, 537; Elliott on Railroads, 768; 93 Ark. 564, 573; 95 Ark. 506.

Section 3 of the Act of 1911, Acts, p. 55, is not meant to absolve a plaintiff from the exercise of ordinary care for his own safety The rule of "comparative negligence" does not abrogate this duty. 1 Thompson on Neg., 255, § 269; Id. 258, § 272; 126 Ill. 381; 13 Ill.App. 148; 12 Ill.App. 400.

Instruction No. 1 does not correctly submit the question of comparative negligence under our statute. 1 Thompson on Neg., § 18; Id. § 282; 16 How. 469; White on Personal Injuries on Railroads, 622; Id. 643, § 459; 90 Ill. 425; 27 Ill.App. 450; 13 Ill.App. 148, 153; 92 Ill. 139; 105 Ill. 554.

2. The appellee's instruction given by the court on the measure of damages is erroneous, and the verdict is excessive. 1 White on Personal Injuries on Railroads, § 182; Id. § 184; 77 Ark. 405, 412; 58 Ark. 205; 20 S.W. 766; 88 Ark. 229; 68 Ark. 6; 76 Ark. 184; 89 Ark. 541; 94 Ark. 270.

Robertson & DeMers, for appellee.

1. There was no error in the instructions given on the part of appellee. The first instruction does not assume negligence on the part of appellant in the placing of the car on the sidetrack. Moreover, other instructions given specifically charge the jury that they must find from the evidence that defendant was negligent in placing the car, and that such negligence caused the collision and injury to plaintiff, before there would be any liability on the part of defendant. This first instruction was in accordance with the provision of the statute, Acts 1911, p. 55, and under it plaintiff's right of recovery was made to depend entirely upon such negligence of the defendant and the absence of contributory negligence on his own part equal to or greater than that of the defendant causing his injury. 89 Ark. 424.

There was no evidence upon which to submit the question of plaintiff's having assumed the risk of the danger of being hurt by a collision between the cab of his engine and the car on the ground of his having knowledge and appreciation of the danger. 89 Ark. 424; 77 Ark. 367; 98 Ark. 227; 93 Ark. 564, 570; 90 Ark. 223.

Instructions 2 and 3 could not have led the jury to believe that appellee was absolved from...