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

CourtSupreme Court of Arkansas
Writing for the CourtMcCULLOCH, C. J.
Citation140 S.W. 698,100 Ark. 437
PartiesST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. AIKEN
Decision Date10 July 1911

140 S.W. 698

100 Ark. 437

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

AIKEN

Supreme Court of Arkansas

July 10, 1911


Appeal from Franklin Circuit Court, Ozark District; Jeptha H. Evans, Judge; affirmed.

Judgment affirmed.

W. E. Hemingway and Lovick P. Miles, for appellant.

The court erred in refusing to permit appellant to continue the examination of talesman R. T. Patrick. 24 Cyc. 341, 342; 7 Cranch 290; 57 Cal. 102; 23 Cal. 375; 121 Pa.St. 455; 14 Ga. 22; 8 So. 838; 69 Tex. 650; 83 Mo. 589; 2 Dev. & B. 212; 3 Wis. 827; 69 Ill. 303; 1 Denio 308; 5 Cal. 347; 69 Ark. 139; Id. 594; 71 Ark. 367; 51 Ark. 177.

The court should have directed a verdict for appellant, 91 Ark. 260; 86 Ark. 290; 91 U.S. 469; 105 Id. 249; 213 Id. 674. Appellant was entitled to an instruction defining "proximate cause." 59 Ark. 134; 69 Ark. 632. The argument of counsel was improper and prejudicial. 70 Ark. 306; 61 Ark. 130; 74 Ark. 256; 58 Ark. 553; 52 Ark. 274; 53 Ark. 388; 93 Ark. 187; 45 A. 593; 55 N.E. 861; 115 Ill. 300; 39 Ill.App. 388; 71 Ark. 427; 89 Ark. 87; 70 Ark. 305; Id. 179; 63 Ark. 174; 87 Ark. 461; 30 N.W. 630.

Jeff Davis and Frank Pace, for appellee.

There was no error in the court exercising control over the examination of talesman R. T. Patrick. 139 Ill. 418; 158 U.S. 413; 7 App. 451; 74 Mo. 271; 93 N.W. 286; 21 Ark. 329; 10 Ark. 428; 5 Ark. 208; 23 Ark. 32; 20 Ark. 619; 58 Ark. 353; 34 Ark. 649; 38 Ark. 304; 69 Ark. 558.

The court properly refused to direct a verdict for appellant. White, Per. Inj., § 36. There was no error committed in the argument of the case that calls for its reversal. 74 Ark. 259; 90 Ark. 406; 89 Ark. 92; 77 Ark. 73; 91 Ark. 579; 78 Ark. 387; 93 Ark. 144; 75 Ark. 349; 48 Ark. 123; 76 Ark. 39; 87 Ark. 463; 63 Ark. 174; 61 Ark. 130; 70 Ark. 183; 65 Ark. 625; 93 Ark. 564.

McCULLOCH, C. J. WOOD, J., dissenting.

OPINION [140 S.W. 699]

[100 Ark. 439] McCULLOCH, C. J.

The plaintiff, W. T. Aiken, while working for defendant railway company, was run over by an engine, and both legs were cut off. He was 17 years old at the time, and sues the company to recover compensation for said injury, alleging that the same was caused by negligence of the engine hostler who had charge of the engine at the time. He recovered judgment below for damages in an amount which is not claimed to be excessive, and the defendant has appealed.

Plaintiff was working as assistant, or herder, as the position is termed, to the hostler. He had been working for the company about two months, first as engine wiper and boiler washer, and then as herder for ten days before his injury occurred, working at night from 7 o'clock P. M. to 7 o'clock A. M. His duties were to assist in taking engines to and from the roundhouse, and to coal and water them, to take incoming engines to the cinder pit and knock the fires and then take them to the roundhouse. He testified that it was his duty to ride moving engines in the yards, on the pilot when headed forward and on the stirrup on the engineer's side of the rear end of the tender when moving backward, in order to throw switches and to signal the hostler when to start or stop. On the occasion in question the engine was on the cinder pit, and plaintiff, after assisting in knocking the fire, examined the sand box on top of the engine, and then blew the whistle for the hostler, who was in the roundhouse, to come and move the engine. When the hostler mounted the engine, plaintiff remarked to him that the engine needed no sand, and got down from the engine on the fireman's side, and started back to the rear of the tender. The hostler and another witness testified that plaintiff said: "We don't need any sand; let's put her in," meaning to start for the roundhouse; but plaintiff denied that he said: "Let's put her in," or anything else except that the engine didn't need sand. Plaintiff started around the end of the tender to ride the stirrup on the hostler's side, placing one foot on a rod over the pit which binds the rails together and holding with one hand to a rod on the tender and a lantern in the other hand, when the hostler moved the engine backward without signal or warning, striking plaintiff, knocking him down, cutting both legs off and his body rolled into the pit, whence it was rescued after his screams attracted attention.

Defendant denied in its answer that the hostler was negligent, [100 Ark. 440] and also pleaded that the injury resulted from plaintiff's own negligence in attempting to pass across the pit behind the tender of the engine.

It is earnestly insisted that the testimony is not sufficient to support the finding of the jury on either of those issues. We conclude, however, that the testimony is sufficient. The testimony of the plaintiff himself, which we must treat as having been accepted by the jury as true, shows that it was customary for the hostler to await a signal from the plaintiff before moving the engine, and that no signal was given; that it was the rule for the hostler to sound an alarm, by bell or whistle, before moving the engine, and that this was not done; and that plaintiff did not say to the hostler: "Let's put her in," or give him any other signal or intimation to move. There is much in the testimony of defendant's witnesses to contradict the plaintiff's statement of the facts, and much to corroborate him. They stated that the rule was for the hostler to sound a bell or whistle before moving, and that that was not done. Some of them testified that it was the duty of the herder to ride on the rear of the tender with a lantern when moving backward so as to display a light and to signal the hostler. The testimony is sufficient to show that the hostler violated his duty in moving the engine without a signal from plaintiff and without sounding a warning from the engine, and this warranted a finding of negligence on his part. It is not essential, in order to sustain the charge of negligence, that the hostler be shown to have known or had reason to believe, at the time he moved the engine, that plaintiff was in a place of danger. If it was his duty to await a signal from plaintiff, the exercise of ordinary care demanded that the engine be not moved unless he knew that the plaintiff was not exposed to danger; at least, the jury had the right to find negligence under those circumstances, whether the hostler knew of plaintiff's perilous position or not.

The testimony also sustains the finding that plaintiff was not guilty of negligence. He testified that it was customary to get down on the fireman's side and cross behind the tender by stepping on the binding rod while holding to the rod on the tender; that it was inconvenient to get over in any other way on the engineer's side of the tender, where it was [140 S.W. 700] necessary to place himself in order to give signals by lantern to the hostler. [100 Ark. 441] Plaintiff could rely to some extent on the fact that the hostler was in duty bound not to move the engine until he gave the signal, and this was a proper element of consideration in determining whether or not he was negligent. The jury had the right to consider plaintiff's age and the amount of his experience in that work in testing the degree of care to which he should be held. Western Coal & Mining Co. v. Burns, 84 Ark. 74, 104 S.W. 535; Arkansas Midland Ry. Co. v. Worden, 90 Ark. 407, 119 S.W. 828.

It is next contended that the court erred in refusing to give the following instructions which defendant requested, to-wit:

"III. In determining whether the hostler, Harris, was negligent and his negligence was such as will entitle the plaintiff to maintain his action against the defendant, you are instructed that Harris, acting for defendant, was under obligation to exercise ordinary care in the handling or operation of the engine to protect from injury such employees as an ordinarily prudent man, situated as Harris, in the exercise of ordinary care, would have discovered or had reason to expect might be injured from the operation of the engine."

"IV. If the hostler, Harris, in the exercise of ordinary care, had no reason to expect Aiken to be where he was when injured, it makes no difference whether the engine was moved as alleged in the complaint, and your verdict should be for defendant."

We think that the other instructions given on the subject of Harris's negligence were sufficiently specific and full to correctly present that issue to the jury, and that no prejudice resulted from refusing to give these two on that subject, even if they were correct. These instructions were, however, not correct in their application to the proof in this case, for they entirely ignored the plaintiff's theory of the case, and laid down an erroneous test of negligence if the jury found with plaintiff on the disputed facts. If, as stated by plaintiff in his testimony, it was customary for the hostler to await a start signal from the plaintiff and not to move the engine before receiving that signal from him nor without sounding the bell or whistle, then it constituted negligence for him to violate this rule, whether he was aware of plaintiff's perilous position or not. Defendant's witnesses testified that plaintiff gave the hostler a signal to move by saying to him: "Let's put her in;" and if these refused [100 Ark. 442] instructions had been so framed as to submit that issue to the jury, they would have been correct; but they omitted this issue entirely, and unqualifiedly told the jury, in effect, that the question of Harris's negligence depended upon his knowledge of or reason to expect danger to some employee, even though he was forbidden by the custom to move the engine without first receiving a signal from the plaintiff, and violated his duty in that respect. Violation of a rule or custom established for the protection of employees in a hazardous occupation constitutes negligence per se. St. Louis, I....

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13 practice notes
  • St. Louis, Iron Mountain & Southern Railway Company v. Mcmichael, 177
    • United States
    • Supreme Court of Arkansas
    • October 19, 1914
    ...15 requested by appellant was properly refused because the same point was covered in the instruction already given. 104 Ark. 528; 100 Ark. 437; 93 Ark. 58; 78 Ark. 520; 87 Ark. 602; 97 Ark. 405; 87 Ark. 308; 89 Ark. 326; 90 Ark. 19; 88 Ark. 12. 5. Appellant refused to request an instruction......
  • Jackson v. State
    • United States
    • Supreme Court of Arkansas
    • January 8, 1912
    ...enough in the record to show that some prejudice to him had resulted from the ruling of the court. St. Louis, I. M. & S. Ry. Co. v. Aiken, 100 Ark. 437, 140 S.W. 698. Finding no prejudicial error in the proceedings, the judgment is affirmed. DISSENT BY: KIRBY [101 Ark. 487] KIRBY, J., disse......
  • Chicago, Rock Island & Pacific Railway Company v. Lindahl
    • United States
    • Supreme Court of Arkansas
    • March 4, 1912
    ...to consider to determine the question to contributory negligence. 97 Ga. 381; 84 Ark. 74; 90 Ark. 407; St. L. I. M. & S. Ry. Co. v. Aiken, 100 Ark. 437. OPINION [145 S.W. 192] [102 Ark. 537] HART, J., (after stating the facts). It is first contended by counsel for the defendant that the pla......
  • Pekin Stave & Manufacturing Company v. Ramey
    • United States
    • Supreme Court of Arkansas
    • May 6, 1912
    ...(1) because appellant's employee allowed the blocks to pile up against the saw when it was his admitted duty to keep them wheeled away. 100 Ark. 437. (2) Because appellant did not provide the machine with an apron or shield which would have prevented the blocks from piling up against the sa......
  • Request a trial to view additional results
13 cases
  • St. Louis, Iron Mountain & Southern Railway Company v. Mcmichael, 177
    • United States
    • Supreme Court of Arkansas
    • October 19, 1914
    ...15 requested by appellant was properly refused because the same point was covered in the instruction already given. 104 Ark. 528; 100 Ark. 437; 93 Ark. 58; 78 Ark. 520; 87 Ark. 602; 97 Ark. 405; 87 Ark. 308; 89 Ark. 326; 90 Ark. 19; 88 Ark. 12. 5. Appellant refused to request an instruction......
  • Jackson v. State
    • United States
    • Supreme Court of Arkansas
    • January 8, 1912
    ...enough in the record to show that some prejudice to him had resulted from the ruling of the court. St. Louis, I. M. & S. Ry. Co. v. Aiken, 100 Ark. 437, 140 S.W. 698. Finding no prejudicial error in the proceedings, the judgment is affirmed. DISSENT BY: KIRBY [101 Ark. 487] KIRBY, J., disse......
  • Chicago, Rock Island & Pacific Railway Company v. Lindahl
    • United States
    • Supreme Court of Arkansas
    • March 4, 1912
    ...to consider to determine the question to contributory negligence. 97 Ga. 381; 84 Ark. 74; 90 Ark. 407; St. L. I. M. & S. Ry. Co. v. Aiken, 100 Ark. 437. OPINION [145 S.W. 192] [102 Ark. 537] HART, J., (after stating the facts). It is first contended by counsel for the defendant that the pla......
  • Pekin Stave & Manufacturing Company v. Ramey
    • United States
    • Supreme Court of Arkansas
    • May 6, 1912
    ...(1) because appellant's employee allowed the blocks to pile up against the saw when it was his admitted duty to keep them wheeled away. 100 Ark. 437. (2) Because appellant did not provide the machine with an apron or shield which would have prevented the blocks from piling up against the sa......
  • Request a trial to view additional results

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