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

• Decision Date: 14 February 1910
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. ROGERS
• Court: Arkansas Supreme Court

126 S.W. 375

93 Ark. 564

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

Supreme Court of Arkansas

February 14, 1910

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

Judgment affirmed.

W. E Hemingway, Kinsworthy & Rhoton, James H. Stevenson, P. R Andrews and S.D. Campbell, for appellant.

1. The evidence fails to show such negligence as to make the company liable, and does show an assumed risk and such negligence on part of plaintiff as to preclude recovery. Negligence must be shown affirmatively. 79 Ark. 76; 57 Ark. 461; 26 Cyc 1202-3-4; 116 F. 627; 106 F. 645; 1 Am. St. 22. Contributory negligence bars a recovery. 63 Ark. 427.

2. Specific objections were made to those instructions which direct a verdict for plaintiff when the question of assumed risk was entirely ignored. 20 S.W. 271; 81 Id. 204; 77 Ark. 307; 87 Ark. 511; 3 Ark. 362; 51 Ark. 88; 91 Am. Dec. 309; 28 Tex. 203. The vice in these instructions is not cured by considering them as a whole. 55 Ark. 393; 57 Id. 203; 87 Id. 511.

3. The measure of damages on the element of decreased earning capacity would be the present value of the same, and not a lump sum consisting of the aggregate of such amounts over a long period of time. 89 Ark. 326.

4. The remarks of counsel were highly prejudicial, and of such nature as to excite the passions and prejudices of the jury. 58 Ark. 368, 473; 61 Id. 130; 63 Id. 176; 69 Id. 486; 65 Id. 625; 70 Id. 305; 72 Id. 427.

5. The verdict is excessive. 89 Ark. 326-333-4; Scribner on Dower (2 ed.) 816; 82 Ark. 61; 76 Id. 190; 78 Id. 109.

Smith & Blackford, and Brundidge & Neelly, for appellee.

1. There was no assumed risk. An employee never assumes a risk caused by the negligent act of the master, but only the ordinary risks incident to employment which he knows of or may know by ordinary care. 67 Ark. 209; 77 Id. 367; 120 S.W. 151, 766, 598, 599, 601; 121 S.W. 999, 268; 119 Id. 73, 672.

2. There is no error in the charge. Instructions should not be considered isolated and alone, but all together in connection with all others given. 57 Ark. 208; 55 Ark. 393. The court should not have stressed the question of assumed risk. 87 Ark. 443; 48 Ark. 333.

3. The negligence of defendant in supplying a safe roadbed, place, tools, etc., was not assumed. 88 Ark. 188.

4. No request was made by defendant as to the measure of damages. Similar instructions on the measure of damages have been approved. 65 Ark. 627.

5. Instruction 7 on assumption of risk was approved in 88 Ark. 188; 83 Ark. 321. See also 48 Ark. 333.

6. No harm was done by modifying the instructions. 48 Ark. 333.

7. A reversal will not be ordered on account of improper argument where no unfair advantage is secured nor prejudice results. 75 Ark. 67; 74 Id. 256; 73 Id. 453-8; 71 Id. 427; 74 Id. 355; 77 Id. 238.

8. The damages not excessive. 67 Ark. 377; 87 Ark. 443.

MCCULLOCH, C. J. WOOD, J., dissenting.

OPINION

MCCULLOCH, C. J.

Plaintiff, Clyde Rogers, recovered judgment against the railway company for damages in the sum of $ 25,000 as compensation for personal injuries received while working for the company as brakeman on a freight train. In attempting to mount a moving box car the stirrup or step into which he placed his foot on the side of the car turned, his foothold gave way, and he fell under the wheels, and both legs were so badly crushed that they had to be amputated. This occurred at Tuckerman, Arkansas, about nightfall, or between sundown and dark. Some of the witnesses say it was still light enough to see, but that lanterns were lighted. The train was north-bound, and had taken a siding to allow a south-bound train to pass. After the south-bound train had passed on the main line, the head brakeman opened the switch, and the engineer started the train forward, when a drawhead on the rear end of a car pulled out and broke apart. This was car marked "W. of A. 1551." Part of the drawbar and coupling fell down on the track between the rails, and when this was discovered plaintiff and the conductor went to the place and endeavored to throw the pieces off the track so as to free the track of the obstruction, but they found them too heavy to handle. While they were working at this, it was decided to set the broken car out of the train and leave it on the side track, and the engine with fourteen cars attached--car marked "W. of A. 1551" being the rear one--pulled forward out of the siding and backed down the other track with this car in front, the broken end being forward. As the backing cars came down the other track and approached within a few feet of where plaintiff and the conductor were working to remove the broken pieces, the conductor directed plaintiff to get on this car and help set it out. Plaintiff attempted to obey, and as he mounted the car the stirrup turned when he placed his foot in it, his handhold also loosened, and he fell under the wheels.

The stirrups are of iron, and are made to hang down under the side of the car, near the end, and are bolted to the sills. On examination of this stirrup a day or two later it was found that the bolt in one end was missing, so that the stirrup was held only by the bolt in the other end, which had also slipped down about an inch. The sills to which it was bolted were old and rotten, and made of wind-shaken timber, and there was a split where the bolt went through, which appeared to be old. Some of the witnesses said that the stirrup swung down under the side of the car, without anything apparently wrong with it to ordinary observation, but that when touched it would swing around on the one bolt under the side of the car. Others said it was slightly bent, and that one end hung around under the car. There was no evidence given by any witness to the effect that the stirrup was observed before the accident to be out of repair, or that to ordinary observation it appeared to be out of repair. Plaintiff testified that he had not noticed anything wrong with it. He stated that when he attempted to mount the car it appeared to be all right; that the stirrup was in its usual place, and that he looked at it when he ran to get on the car. He said that the first he knew of anything being wrong with the stirrup was when it gave way beneath his foot.

A car inspector for the company testified that he inspected this car, as well as all the others in the train, at Baring Cross, and that the car was in good condition and free from defects.

Defendant put in evidence from the standard book of rules two covering the duties of brakemen, as follows: "Rule 400. While on the train, brakemen are under the directions of the conductor. It is their duty to attend to the brakes, be provided with, take care of and properly display train signals and danger signals, assist the conductor in loading and unloading freight, in inspecting cars and in all things necessary to the lighting, heating and ventilation of the cars; open and close the car doors and assist the conductor in the proper disposition of passengers and in preventing them from riding on the platform or in any wise violating the regulations provided for their safety, in preserving order and in all things requisite for the comfort of the passengers."

"Rule 401. Trainmen must examine and know for themselves that the brake-shafts and attachments, ladders, running boards, steps, handholds and other parts and mechanical appliances, which they are to use, are in proper condition; if not, report them to the proper authorities, that they may be put in order before using."

The conductor, Mr. Parker, who was introduced by defendant as a witness, testified that the common interpretation of these rules is that brakemen are required to look around the train to see if anything is the matter, but that a brakeman would not be required to make a thorough examination like a car inspector. Quoting further his testimony, he stated: "It is a general inspection of conductors and also of brakemen looking over the train for such defects as they may find. A man would not have to grab hold of every piece. It is the duty of the inspector to do that, as I understand. They have a car inspector at Argenta, and that is the last place the car inspector could have looked at it. It is the business of the car inspectors, as I understand it, to make an examination for hidden defects." This testimony was not contradicted.

It is in the first place, insisted that there is not sufficient evidence to show that there was a defect in the car when it started on the trip, nor to sustain a charge against defendant for failing to discover the defect, if any existed. In other words, that there was no defect which defendant by the exercise of ordinary care could have discovered at the time of the inspection when the train started on the trip. We think there was sufficient evidence, however, to sustain that charge. Some of the witnesses who examined the car shortly after the accident testified that the stirrup was loose, that the sills to which it was bolted were old and made out of wind-shaken timber, and that there was an old crack where the bolts went through. The evidence also warranted a conclusion that these defects in the stirrup and the sill to which it was bolted were not attributable to the pulling out of the drawbar when the train broke in two. Now, if this condition existed as testified by the witnesses, it justified a finding that the defects could, by the exercise of ordinary care on the part of the car inspector, have been discovered when the inspection was made at Baring Cross, and that he was guilty of negligence in failing to discover them. St. Louis & S. F. Rd. Co. v. Wells, 82 Ark. 372, 101 S.W. 738; Kansas City So. Ry. Co. v. Henrie, 87 Ark. 443, 112 S.W. 967; St....