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

• Decision Date: 06 March 1911
• Citation: 135 S.W. 889,98 Ark. 259
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WIGGAM
• Court: Arkansas Supreme Court

135 S.W. 889

98 Ark. 259

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

Supreme Court of Arkansas

March 6, 1911

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

STATEMENT BY THE COURT.

C. F Wiggam brought this suit against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for injuries alleged to have been sustained on account of the negligence of the railway company's employees.

The plaintiff, Wiggam, testified that Hodges, Downey & Company were getting out gravel for the St. Louis, Iron Mountain & Southern Railway Company from the Ouachita River, and were putting it on the main line of the railroad. The gravel pit was something like six miles from Malvern, Ark., where plaintiff resided. It was about three miles from the main line of the railroad. The railroad came from the main line to the gravel pit, and there is one end of the "Y" there that leads north, and one that leads south. Plaintiff was employed by one LaDuke, representative of Hodges, Downey & Company, to do carpenter work for them at the gravel pit. Plaintiff and one Holt, who hired at the same time, asked LaDuke how they would get to and from Malvern to their work. He told them that they would go and come on the Iron Mountain train. He also told them that when the train stopped they would go and come on the hand cars with the Iron Mountain employees. Plaintiff came and went to and from the gravel pit with the other Iron Mountain employees after they quit using the train.

J. V Miller was one of the railway company's foremen, and Lon Baker was bridge foreman. J. G. Slibeck was resident engineer and head foreman. They all rode to and from the work on the hand cars. Miller usually rode on the front one. Just as they were starting home from work one afternoon, plaintiff was injured while attempting to get on one of the hand cars. He described the occurrence as follows:

"That he, Wiggam, was the only white man on this car, and the negroes operating same, seeing that they could not get out to the main line on the north leg of the 'Y,' and being in a big rush to get ahead of the other cars, decided to go to the south leg of the 'Y,' and they jerked the car up with Wiggam on it, and he got off and walked across to the south leg of the 'Y,' and as soon as they set it down on the track he walked up by the side of the car to sit down on the front end and threw one leg over the rail, and as he started to bring the other leg over some one gave the car a shove and knocked his feet out from under him and caused him to fall back under the handle bars and get struck on his neck and crushed down."

Plaintiff said that he had nothing to do with the race to get ahead of the other cars.

Lon Baker testified that Slibeck, the engineer in charge of the construction of the spur track to the gravel pit, told him to let the employees of Hodges, Downey & Company ride to and from their work at the gravel pit on the hand cars he was using. Miller testified that he did not remember Slibeck saying anything to him about Hodges, Downey & Company's employees going to and from the gravel pit with his crews and on his cars; but that they did so.

The plaintiff also adduced evidence tending to show the character and extent of his injuries.

J. G Slibeck for the defendant testified that he did not authorize or instruct Miller or any other of the foremen to let Hodges Downey & Company's employees ride to and from their work on the hand cars.

Defendant also adduced evidence tending to show that plaintiff was guilty of contributory negligence. The jury returned a verdict for plaintiff, and from the judgment rendered the defendant has duly prosecuted an appeal to this court. Other evidence will be referred to in the opinion.

Judgment affirmed.

W. E. Hemingway, E. B. Kinsworthy, Bridges, Wooldridge & Gantt, and James H. Stevenson, for appellant.

The verdict is not sustained by the evidence. 2 Hutch. Carr. § 1000; 40 Ore. 225; 66 P. 909; 120 N.C. 508; 26 S.E. 284; 3 Hutch. Carr. § 1205; 3 Thomp. Neg. § 2672. When contributory negligence is shown by the testimony of plaintiff, defendant need not prove it. 72 Ark. 572.

Jabez M. Smith, for appellee.

Any defense not pleaded will be treated as waived. 69 Ark. 256; 88 Ark. 153; 76 Ark. 424; 71 Ark. 484; 70 Ark. 505. Appellant is liable for failure to exercise reasonable care. 46 L. R. A. 38; 46 Id. 107; 90 Ark. 64; 77 Ark. 561; 57 Ark. 136. It is the duty of a party to a suit to request instructions desired. 67 Ark. 417; 75 Ark. 76.

OPINION

HART, J., (after stating the facts).

It is earnestly insisted by counsel for the defendant that the verdict is not sustained by the evidence. They contend that, under the most favorable deductions to be drawn from the evidence, the plaintiff rode back and forth from his work as a mere licensee, without payment of fare and without any contractual relations of any kind with the defendant. On the other hand, counsel for plaintiff insists with equal force that the complaint alleged, and that there is sufficient evidence from which the jury might have inferred, that Hodges, Downey & Company were working for the defendant railway company; and that if it wished to avail itself of the defense that Hodges, Downey & Company were independent contractors it should have pleaded it as a defense. In support of his contention, he cites the case of Kansas City, P. & G. Rd. Co. v. Pace, 69 Ark. 256, 63 S.W. 62. We are of the opinion that the contention of counsel for the plaintiff is correct. The plaintiff alleged in his complaint that Hodges, Downey & Company were engaged in the work of reballasting the St. Louis, Iron Mountain & Southern Railway with gravel, and testified that Hodges, Downey & Company were getting out gravel from the Ouachita River for the Iron Mountain Railroad, and that he was working for them when he sustained the injury complained of. Lon Baker, defendant's bridge foreman, testified that Hodges, Downey & Company were putting gravel on the main line of the Iron Mountain Railroad for it.

The defendant in its answer did not deny that Hodges, Downey & Company were working for it, and did not set up as a defense that they were independent contractors.

In the case of Kansas City, P. & G. Rd. Co. v. Pace, supra, the court held that "if a defendant fails to plead any defense it may have the same will be treated as abandoned or waived." See also Missouri & North Ark. Rd. Co. v. Pullen, 90 Ark. 182, 118 S.W. 702. In 31 Cyc. 128, it is said: "All defenses not made in the pleadings are considered waived, especially such as are connected with the facts alleged."

Hence we hold that it is too late now to set up that Hodges, Downey & Company are independent contractors, but that, under the pleadings and proof, Hodges, Downey & Company were working for the defendant railway company, and that their employees were the servants of the railway company. This being true, the law of the case is as follows:

"Although an employee being transported on a train to his place of work is not a passenger within the common meaning of the term, the railway company owes him the duty of exercising ordinary care for his protection, and he is bound to exercise such care for his own safety as a person of ordinary prudence would exercise under like circumstances." St. Louis, I. M. & S. Ry. Co. v. Harmon, 85 Ark. 503, 109 S.W. 295.

Under the facts and circumstances of this case as presented by the record, the negligence of the defendant and the contributory negligence of the...