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

• Decision Date: 06 March 1911
• Citation: 135 S.W. 811,98 Ark. 227
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BOOTH
• Court: Arkansas Supreme Court

135 S.W. 811

98 Ark. 227

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

Supreme Court of Arkansas

March 6, 1911

Appeal from White Circuit Court; Hance N. Hutton, Judge; affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, P. R. Andrews and James H Stevenson.

Plaintiff was guilty of contributory negligence, and the court should have instructed a verdict for defendant. 91 Ark. 86; 41 Ark 542; 70 Ark. 603; 79 Me. 397; 38 W.Va. 206; 27 Minn. 137; 6 N.W. 553; 98 Ill. 481; 5 Am. & Eng. Ry. Cas. 651; 37 W.Va. 180; 16 S.E. 457; 106 Ia. 253; 76 N.W. 670. The risk of injury was assumed by plaintiff. 88 Ark. 548; 77 Ark. 367; 79 Ark. 53; 89 Ark. 588; 87 Ark. 396. Misleading and contradictory instructions should not be given. 72 Ark. 31; 74 Ark. 437; 64 Ark. 332; 89 Ark. 213; 92 Ark. 6. The negligence of the master may be assumed. 77 Ark. 367; 79 Ark. 53; 88 Ark. 548; 89 Ark. 508; 87 Ark. 396.

S. Brundidge, Jr., and Harry Neelly, for appellee.

Plaintiff had the right to assume that the master would not subject him to abnormal risks. 80 Minn. 400; 83 N.W. 440; 112 Ind. 166; 11 N.E. 322; 67 Ark. 377; 55 S.W. 165; 43 Minn. 42; 44 N.W. 522; 89 Tex. 635; 35 S.W. 1058; 60 O. St. 487; 54 N.E. 475; 107 Tenn. 340; 64 S.W. 1; 56 Kan. 228; 42 P. 724; 104 Ia. 139; 73 N.W. 614; 98 Wis. 348; 74 N.W. 212; 23 N.E. 675; 102 Ill.App. 428; 66 N.E. 829; 93 Ga. 259; 159 Mass. 532; 67 Ark. 377; 64 Ia. 613; 92 N.Y. 639; 16 L. R. A. 189. The risk of injury was not assumed. 77 Ark. 367; Id. 458; 76 Ark. 184; 80 S.W. 387; 70 Ark. 295; 89 S.W. 370.

OPINION

FRAUENTHAL, J.

This is an action instituted by William Booth, the plaintiff below, to recover damages for personal injuries which he alleged he sustained while in the service of defendant. The plaintiff was a fireman on one of defendant's freight trains, and he alleged that he received the injuries complained of by reason of the negligence of other employees of defendant in carelessly backing the engine and cars attached with great and unusual force against other cars of the trains, so that he was thrown with great violence against the gate chains across the tender and injured thereby to such an extent that it caused the paralysis of his lower limbs. The defendant denied all allegations of negligence contained in the complaint, and pleaded that any injury which plaintiff sustained was caused by his own contributory negligence or resulted from a risk which he assumed by his employment. It further alleged that plaintiff had, by written contract duly executed by him, in consideration of re-employment released defendant from all liability by reason of said injuries. The plaintiff denied the execution of said alleged release; and the defendant virtually abandoned that defense by failing to introduce any evidence to sustain that plea and by failing to ask any instruction presenting that issue to the jury. The testimony on the part of the plaintiff tended to establish the following facts: On the early morning of September 12, 1909, while it was yet dark, the plaintiff was engaged in the discharge of his duties as a fireman on one of defendant's freight trains, and while at the station of Kensett it became necessary to attach to the train two stock cars which were standing on a switch. The engine was detached from the main body of the freight train, which was left on the main line, and proceeded on said switch and attached the two stock cars to the rear of the engine. The engine with the cars attached then entered on the main line at a distance of about one-half mile from the main cars of the train and proceeded backward in order to couple thereto. When the engine began backing on the main line, it was going at a rate of speed of about six to eight miles per hour, and the engineer directed the plaintiff to light a lamp at the water glass, which registers the water in the boiler, and which had been blown out, and also to put coal in the engine so as to get the fire in proper condition. The plaintiff lighted the lamp, which took a short time on account of the wind, and then proceeded to shovel the coal in the engine. He had taken up the scoop and was bent over in the act of opening the door of the engine when the engine and two cars were backed at such a rate of speed that they were thrown against the portion of the train on the main track with such great and unusual force and violence that it knocked plaintiff off his feet and threw him on the iron chains across the tender. It threw him with his back against these chains with such force that it bent him double and injured him very severely. He was unable to move himself, and was placed upon a cot and carried on a passenger train to Little Rock. The testimony tended to prove that at the time the coupling was attempted to be made the engine was going at a rate of speed of six to eight miles per hour, which was an unusual and dangerous rate of speed at which to go in making a coupling, and that this was due either to the negligence of the engineer or to the negligence of the brakeman in failing to give the engineer the slow up signal. The testimony tended further to prove that in the proper discharge of his duties the fireman of a freight train should ordinarily occupy a seat in the cab while the train is backing to make a coupling, but that it is also his duty to obey the directions of the engineer and to put coal in the engine at any time that it may be needed, even though it is backing.

The plaintiff testified that when the engine entered on the main track and proceeded back towards the balance of the train in order to couple to it he knew the engine was going at a rate of speed of from six to eight miles an hour, and that this was an unusual and dangerous rate of speed at which to go in making a coupling; but he also testified that he thought the engineer would slacken the speed before the balance of the train was reached. At that time the engine was nearly one-half mile from the balance of the train, and the plaintiff left the seat in the cab and proceeded to light the lamp and fire the engine, standing in the deck of the engine. The engineer denied that he had directed the plaintiff to light the lamp or fire the engine, and testified that plaintiff at his own instance was standing on the iron bridge between the engine and tender rolling a cigarette, and that he was in that attitude when the impact of the cars came at the time of the coupling. He also testified that the engine was only going at the rate of three or four miles an hour at the time of the coupling, which was a safe and ordinary rate of speed for that purpose. The jury, however, made a finding sustaining the testimony given on the part of the plaintiff, and upon this controverted question of fact we must be bound by their determination. The jury returned a verdict in favor of the plaintiff, and the defendant prosecutes this appeal.

It is urged by counsel for defendant that the plaintiff is not entitled to recover, under his own testimony, because the injury which he received was due to a risk which he assumed. It is insisted that the plaintiff, when he left the seat in the cab, which was a safe place, and stood in the deck of the engine, knew the high rate of speed at which the engine was backing and that it was dangerous to make a coupling at that rate of speed, and therefore assumed the risk of any injury occurring therefrom. It is, of course, well settled, indeed, so well settled that it is now considered almost elementary, that a servant assumes all the ordinary and usual risks and perils that are incident to the service in which he is engaged; but it is equally well settled that he does not assume any risk of danger caused by the negligence of the master. The result of that principle is that the servant has the right to assume that the master has exercised and will exercise due care and diligence, and he has the right, while exercising ordinary care for his own safety, to act upon the presumption that the master has exercised and will exercise that care and diligence for his protection. Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367, 92 S.W. 244; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458, 92 S.W. 249; Choctaw, O. & G. Rd. Co. v. Craig, 79 Ark. 53, 95 S.W. 168; Pettus v. Kerr, 87 Ark. 396, 112 S.W. 886; St. Louis, I. M. & S. Ry. Co. v. Harmon, 85 Ark. 503, 109 S.W. 295; St. Louis, I. M. & S. Ry. Co. v. Birch, 89 Ark. 424, 117 S.W. 243.

Now, by the act of the General Assembly approved March 8, 1907 (Acts 1907, p. 162), a railroad company is made responsible for the injuries to its servant caused by the negligence of a fellow servant. By virtue of that act the master is made responsible to his servant who, while exercising ordinary care, is injured by the negligent act of a fellow servant, "the same as if the negligence was that of the master." The servant of a railroad company does not therefore ordinarily assume the dangers or perils that arise from or which...