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

• Decision Date: 25 October 1890
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. HIGGINS
• Court: Arkansas Supreme Court

14 S.W. 653

53 Ark. 458

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. HIGGINS

Supreme Court of Arkansas

October 25, 1890

APPEAL from Lafayette Circuit Court, C. E. MITCHEL, Judge.

Judgment affirmed.

Dodge & Johnson for appellant.

This case was reversed upon substantially the same facts in 44 Ark. 293.

1. There is no evidence of negligence, either directly or remotely, on the part of appellant; but the injury was shown clearly to have been the result of carelessness and neglect on part of the appellee contributing directly to the injury. Defendant's liability did not depend upon the fact that the platform of the caboose sagged a little; but upon the fact whether or not in its then condition it ought to have been used about the work in which plaintiff was engaged. 35 Ark. 615; 44 Ark. 300. Plaintiff knew of the defect, and attempted to make the coupling, and cannot recover. A railroad is not bound to use only the best implements machinery and methods. 45 Mich. 212. Nor is it bound to discard old cars, or of an old style, because coupling them is attended with increased danger. 33 Mich. 102; 77 Ill. 365; 88 Ill. 112. The law only requires its appliances to be reasonably safe for the uses they are put to. 12 A. & E. R R. Cas., 214; 35 Ark. 615; 21 A. & E. R. R. Cas., 634; 21 A. & E. R. R. Cas., 642-3.

Plaintiff knew of the defects, and the injury occurred from his own carelessness. 31 A. & E. R. R. Cas., 197. He alone is to blame. 53 Mich. 212; 18 N.W. 787; 122 U.S. 194; 29 Conn. 548. The increased risk from cars of different heights or make is one assumed by an employe. 18 F. 282; 23 N.W. 890; 7 P. 204; 8 P. 411; 2 A. 355; 34 F. 102; 45 Mich. 212; 7 N.W. 794; 31 N.W. 46; 33 Mich. 134; 122 U.S. 195; 109 U.S. 482; 67 Mo 300; 11 S.W. 699; 51 Ark. 467.

Upon the facts alone the case should be reversed. 21 P. 562; 21 Pac. Rep:, 574; 21 N.E. 402; 83 Va. 640; 3 S.E. 145 and notes.

2. In view of the facts and the authorities cited above, it was error to refuse to give instructions two and three asked by appellant. They were approved when this case was here before. The refusal of the court to give number four as asked was error, and was not cured by giving them in the form as modified. 46 Ark. 569. The fifth prayer was asked upon the authority of 35 Ark. 615, and 44 Ark. 300.

For the same reasons the court erred in giving the third, fourth and sixth for plaintiff. The third is misleading, and the facts did not justify it. Number four instructed the jury that defendant was an insurer of the lives of its employes, and number six made defendant liable simply upon notice of the defect, wholly disregarding the fact that plaintiff knew of it and waived it, or assumed the risk by continuing to work. See cases supra.

3. Improper evidence was allowed to go to the jury in the nature of the former verdict, to the defendant's manifest injury. 16 Pet., 166, 147; 16 Ark. 590; 4 Johns. 487; 29 Johns. 293; 35 Johns. 109; 60 N.Y. 648; 5 Col. 276; 11 S.W. 766; 11 Iowa 62; 1 Allen, 455; 5 Mass. 403; 19 N.H. 148; 7 Geo., 294; 6 N.H. 360-1; Hayne, New Tr., sec. 68; Proffat, Jury Trial, secs. 390-2; 5 Pick. 297; Coke's Litt., 227 b; 2 Hale's P. C., 308; Cro. Eliz., 189; 8 Barb. 47; 3 Foster (N. H.), 497; 19 Ill. 480; 30 N.W. 682; 25 Ga. 494; 4 Yerg., 111; 6 Humph., 275; 57 Me. 493; 1 Brev., 16; 18 B. Mon. 291; 32 N.W. 246.

4. The verdict is excessive.

T. E. Webber, Montgomery & Hamby and Atkinson & Tompkins for appellee.

1. This case was not tried virtually upon the same evidence as set out in 44 Ark. 298. The testimony of the conductor is contradicted by the plaintiff and brakeman.

A master owes it to his employe to provide suitable appliances, track and sound and sufficient cars to do their work. 44 Ark. 298. The testimony shows that plaintiff was young and inexperienced; that he did not know of the increased danger, and was not warned.

It was negligence, if defendant placed plaintiff in a perilous situation which he did not comprehend, without explaining its dangers, and plaintiff cannot be held to have assumed the risks and hazards of which he was not informed, and which he could not understand by reason of his inexperience. 13 S.W. 801; 3 Fost. & F., 622; 3 Am. Rep., 506; 120 Mass. 427; 113 Mass. 399; 25 Am. L. Rev., N. S., 580; 66 Wis. 168; 50 Mich. 70; 55 Ind. 45; 40 Mich. 420; 39 Ark. 17; 37 Mich. 211; 20 N.E. 466; 148 Mass. 22; 16 Lea, 391; 87 Ala. 719.

It is the duty of railway companies to explain fully to minors and inexperienced persons the dangers and risks incident to their employment; knowledge of defects and dangers are not imputed to these classes. 8 A. & E. R. R. Cas., 527; 28 A. & E. R. R. Cas.; 308; 18 A. & E. R. R. Cas., 14; 1 Lawy. Rep. An., 174 and cases supra.

Even if plaintiff knew of the defects, it was still a question for the jury to say whether his exposure to danger was. reckless, or whether he exercised the care for his safety that might reasonably be expected. 128 U.S. 91.

2. Review the cases cited by counsel for appellant, distinguishing them from the case in point.

3. The mere fact that the complaint, with a former verdict thereon endorsed, went to the jury without any showing that it was fraudulently or designedly done to influence them is not a reversible error. 38 Ark. 313; 20 Me. 93,

4. The verdict is not excessive. 2 Gilm., 432; 61 Iowa 452; 49 Ark. 381; 50 Wis. 419; 15 A. & E. R. R. Cas., 312; 25 A. & E. R. R. Cas., 446; 64 Miss. 584; 46 N.Y.S.Ct. 211; 71 Mo. 83; 13 Nev. 106, 153; 38 Iowa 592; 43 Iowa 676; 43 Hun, 421; 18 Bradw. (Ill.), 418.

5. Interest rei publicae ut sit finis litium, and the judgment should be affirmed.

OPINION

BATTLE, J.

George Higgins brought an action against the St. Louis, Iron Mountain & Southern Railway Company for $ 20,000, on account of injuries received by him while in the employment of the defendant. Two trials were had in the action. In the first, Higgins recovered a judgment which was reversed on appeal to this court, and the cause was remanded for a new trial. In the second, evidence was adduced tending to prove the following facts: On or about the first day of November, 1880, George Higgins was employed by the railroad company as a brakeman on one of its freight trains. He was then about nineteen years old. During the time he was a brakeman, there was a caboose in the train on which he was employed. It was old, and the floor of it had sagged. On this account its draw-head was lower than that of the freight car in front of it, so much so that in coupling them the draw-head of the freight car would pass over that of the caboose, unless the coupling was successfully made. For five months or more the caboose had been condemned as out of repair; had been repeatedly so marked; and the attention of the master mechanic of the defendant had been twice called to its condition by the conductor. In coupling it and freight cars, it was necessary to use a crooked link to avoid the danger of coupling caused by the draw-head of the caboose being lower than that of the freight cars. There was no such link on the train. At the time he was employed, Higgins had no experience as a brakeman nor in railroading. During his service he was rear brakeman; had made only two trips on the caboose when he was hurt; never coupled it to another car; it was not his duty to do so. Until he was injured, his attention had never been directed to the fact that the draw-head of the caboose was lower than that of the freight cars. He had never been told to use a crooked link in making the coupling. No instruction had been given to him about coupling the caboose to other cars. On the 31st of December, 1880, as the train was going north on the defendant's road, near Homan in this State, the door to one of the box cars dropped off, and two bales of cotton fell out of it. The conductor instructed the train men to set this car out on the side-track at Homan, so that the cotton could be put back, and brought on the next train. In doing this it was necessary to uncouple the caboose from, and couple it to, a box car. The conductor directed Higgins to do this. This was about 5 o'clock in the morning. "It was dusky and not good light." He uncoupled the caboose from the train, "and left it standing on the main track just below the mouth of the switch." He then hurried over to the switch and threw it open. The box car was then set out on the switch "by a sudden kick back, and the train pulled up to couple to the caboose." He had then to "hurry back to the caboose and get there before the train, so as to couple the caboose to it." All this had to be done, and was done, in a hurry, "as the train was running on a time order." As the train moved back, and was within about four feet of the caboose, he stepped in to make the coupling. He found a straight link in the rear end of the box car that was to be coupled to the caboose. He made an attempt to make the coupling with this link and failed. He discovered then, for the first time, the condition of the draw-heads of the two cars. He made an effort to get out, but the draw-heads passed one over the other, and he was caught between the platform of the caboose and the end of the box car. He was severely injured; was unconscious for several hours; after he returned to consciousness he suffered great pains; his limbs were paralyzed for a week or longer. He never has recovered, and cannot, on account of this injury, perform much labor without becoming sick. Much evidence as to the nature and extent of this injury, that is not stated in this opinion, was adduced.

The court instructed the jury, at the instance of plaintiff, over the objections of defendant, as follows:

"Instruction No. 3. If you find from the evidence, that the plaintiff George W....