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

• Decision Date: 17 April 1911
• Citation: 137 S.W. 1103,99 Ark. 265
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WEBSTER
• Court: Arkansas Supreme Court

137 S.W. 1103

99 Ark. 265

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

Supreme Court of Arkansas

April 17, 1911

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge affirmed.

Judgment affirmed.

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

1. The court erred in refusing to grant a continuance. 66 Ark. 278; 59 Ark. 169; Pomeroy, Rem. Rights, § 554; 75 Ark. 369 372; 74 Ark. 159; 85 Ark. 334; 67 Ark. 142.

2. The depositions of Doctors Bentley and Barlow should have been suppressed.

3. The evidence was not sufficient to sustain a verdict against appellant. The burden was on appellee to show negligence, i. e., the want of reasonable care and diligence on the part of appellant with reference to the hand hold, and this burden was not shifted by proof of the injury. On the contrary, the appellant is presumed to have done its duty by furnishing safe and suitable appliances for the performance of the work. If there is proof that the appliances were defective, there remains the further presumption that appellant was not negligently ignorant of it and had no notice of it. 44 Ark. 529; 46 Ark. 555; 79 Ark. 437. See also 88 Ark. 181; 87 Ark. 451; 82 Ark. 372; 79 Ark. 437; 93 Ark. 566; 26 P. 297; 82 N.W. 467.

4. The court erred in giving its instruction 5 and in refusing to give instruction 6 requested by appellant. 50 Ark. 549; 96 Ark. 206.

5. The verdict is excessive. Although appellee had been 13 years in railroad service, his highest monthly earnings was $ 79.00, an annual income of $ 948. Assuming that he was totally incapacitated for any kind of renumerative occupation, which is not borne out by the evidence, and that his expectancy was 35 years, the amount of the verdict $ 35,000.00 at 6 per cent. would earn $ 2,100.00 per year, $ 1,152.00 more than the total of his highest monthly wages, and at the conclusion of his expectancy, assuming that the total amount of interest had been spent, there would remain an accumulation of $ 1,000.00 for each year of the remainder of his life. In such cases as this compensation "must be considered upon a reasonable basis of estimation." 89 Ark. 522; 57 Ark. 386.

Jeff Davis and Frank Pace, for appellee.

1. The court properly overruled the motion for continuance. There was no abuse of discretion. 24 Ark. 599; 22 Ark. 164; 26 Ark. 323; 40 Ark. 114; 19 Ark. 92; 2 Ark. 33; 72 Ark. 614; 76 Ark. 173; 93 Ark. 120; Id. 347; 94 Ark. 538.

2. The depositions of Drs. Bentley and Barlow should not have been suppressed. The court heard the evidence with reference to the oral agreement of counsel, and found that it was agreed that all formalities with reference to the taking and transmission of the depositions were waived.

3. The evidence was sufficient to sustain a verdict. The presumption that the master has done his duty by furnishing safe and suitable appliances to the servant for the performance of his work is met in this case by the fact, shown in evidence, that the injury was the result of the defective condition of the grab-iron. And the second presumption, that the master had no notice of the defect or was not negligently ignorant of it, is met by evidence which shows conclusively that the appellant either knew of the defect or was negligently ignorant of it. "The duty of inspection is affirmative, and must be continuously fulfilled and positively performed." 92 Ark. 355, 357; 66 Vt. 331; 149 U.S. 368; 152 U.S. 684; 4 Thompson on Neg., § 3803c; 1 Labatt, Master & Servant, §§ 155-157; 67 Ark. 295; 82 Ark.372; 138 Mass. 426; 87 Ark. 451; Id. 474; 88 Ark. 184; 91 Ark. 391; Id. 349; 92 Ark. 559; 93 Ark. 566; 54 Wis. 257; 82 N.W. 637; 37 C. C. A. 6; 7 N.W. 347; 43 S.W. 1090.

4. There was no error in the 5th instruction given 48 Ark. 333; 67 Ark. 307; 157 U.S. 72; 116 N.Y. 398. And the sixth instruction requested by appellant is not the law. Rules of the company not brought to the knowledge of the servant do not bind him. 48 Ark. 433. See also 163 N.Y. 396; 44 A.D. 11.

5. The verdict is not excessive.

MCCULLOCH, C. J. WOOD, J., dissenting. HART, J., concurs in dissenting opinion.

OPINION

MCCULLOCH, C. J.

The plaintiff, R. W. Webster, claims to have received personal injuries while in the service of the defendant, the St. Louis, Iron Mountain & Southern Railway Company, as brakeman, and sues to recover damages, alleging that his injuries were caused by the negligence of the defendant in failing to exercise ordinary care to discover and repair an insecure handhold or grabiron on the top of one of the freight cars in the train which plaintiff was handling. He claims that the grabiron gave way under his grasp, and that he fell to the ground, receiving severe injuries on account of the fall from the moving train. This occurred on January 10, 1910, near Bryant, a station south of Little Rock on defendant's main line, and only a few miles from the junction with the Bauxite & Northern railroad, which is a short line running from defendant's main line, a distance of a mile and a half or two miles to Bauxite, a station on the Chicago, Rock Island & Pacific Railway, where there is situated a large plant for the reduction of bauxite ore. The car in question was loaded with ore for shipment to East St. Louis, and plaintiff and another brakeman assisted in switching it into their train from the track of the Bauxite & Northern Railroad, on which it had been brought from the reduction plant. The junction of the Bauxite & Northern Railroad with defendant's line is spoken of by the witnesses as "Bauxite," but the village or railroad station of that name is, as before stated, on the line of the Chicago, Rock Island & Pacific Railway Company. This action was instituted in the circuit court of Crawford County May 5, 1910. In the complaint it was alleged that on the 10th day of January, 1910, plaintiff "was in the employ of defendant as brakeman on a freight train, and as such was assisting in running a train over the tracks of the defendant's railway between Malvern and Little Rock, Arkansas, and that as said train was leaving the station of Bryant plaintiff, in the performance of his duty and exercising due care on his part, was boarding a box-car in said train, and, while so engaged, took hold of a grab-iron on top of said car, and that said grab-iron pulled loose from said car, causing plaintiff to fall with great force," etc. Continuing, it was alleged that defendant "carelessly and negligently permitted said grab-iron on said car to become loose and unsafe and the fastenings thereof to become weak and imperfect, unsound and unsafe, and that this fact was known to the defendant, or could have been known by reasonable inspection, and was unknown to plaintiff," etc.

On June 25, 1910, defendant filed in the office of the clerk of the Crawford Circuit Court a motion to require the plaintiff to make his complaint more definite and certain by setting forth therein a specification of the particular train on which he was working when injured, whether it was a local or through train, what direction it was going, the number and initials of the car upon which the alleged insecure grab-iron was situated, and the time of day or night when the injury occurred. A copy of this motion was delivered to plaintiff's counsel on the day it was filed, and on June 30, 1910, the day of trial, plaintiff amended his complaint by stating that the train in question was the "only local freight train that ran daily between Little Rock and Malvern;" that same was going toward Little Rock, and that plaintiff had "no personal knowledge of the number of said car, but that, after the accident, he was informed by those in charge of the train, Mr. Farabee, the conductor, and Mr. Eddy, a brakeman, that the number of same was 350,142 and the initials 'C., R. I. & M.'" Defendant thereupon filed its answer, denying all the material allegations of negligence, and pleaded contributory negligence and assumption of the risk on the part of the plaintiff. Defendant also filed a motion for a continuance, to enable it to prepare for defense by obtaining testimony as to the movements of the car in question prior to the accident, "the age of the car, place and manner of construction, when the several grab-irons thereon were applied, and who applied them," as to the inspection of the car immediately prior to the accident on defendant's line, or on foreign lines, when and how made and by whom, etc., the condition of the grab-irons on said car at the time of the accident, etc. The motion then proceeds as follows:

"4. If it should appear that the car now named in the complaint was not the one from which plaintiff fell, then defendant must, in order to maintain its defense, present evidence along each of the lines hereinbefore mentioned with respect to each car in the train upon which plaintiff was laboring at the time of his injury.

"5. The defendant has not completed an investigation either with respect to the specific car named or to the cars in said train, nor has it been possible since the filing of this complaint. The evidence which defendant has not now, but which it can procure if this cause is continued, will, it verily believes, acquit the defendant of any actionable negligence. The evidence hereinbefore detailed, which is material, is not wanting at the present time through the consent, connivance or procurement of the defendant."

The court overruled the motion and recited in the order a finding that it was "conceded that defendant was informed, on the date the accident occurred and immediately thereafter, by both the plaintiff and his fellow-employees on the train that the car from which the grab-iron was said to have pulled, and from which the plaintiff was said to have fallen, was the car 'C., R. I....