St. Louis, Iron Mountain & Southern Railway Company v. York

• Decision Date: 01 November 1909
• Citation: 123 S.W. 376,92 Ark. 554
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. YORK
• Court: Arkansas Supreme Court

123 S.W. 376

92 Ark. 554

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

Supreme Court of Arkansas

November 1, 1909

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed.

Judgment affirmed.

Kinsworthy & Rhoton and Jas. H. Stevenson, for appellant.

Where one elects the more dangerous of two methods of performing an act and is injured while so doing, no recovery should be allowed. 128 F. 529; 82 N.E. 675; 79 N.E. 1040. Going between the cars was the proximate cause of the injury. 79 N.E. 1040; 83 N.E. 343. One should not adopt the more dangerous of two methods of doing a thing. 149 Mich. 126; 129 F. 347. The Safety Appliance Act of Congress does not abolish the doctrine of contributory negligence. 117 F. 462. A recovery can be had in such cases only when defendant is guilty of using such couplers as are prohibited by the act. 4 Penn. (Del.) 80. Therefore, if plaintiff contributes to the injury by his own negligence, he cannot recover. 129 F. 347. The defense of contributory negligence is as available after as before the passage of the act. 113 N.W. 1120; 147 Mich. 454. The difference between the defenses of "assumed risks" and "contributory negligence" is clearly defined in 88 Ark. 243; 205 U.S. 1; 129 F. 347. The conscious negligence of a servant in doing or omitting to do an act is not assumed risk. 20 Tex. Civ. App. 161; 105 S.W 1149. In selecting the least dangerous of two or more methods of doing an act, the servant should not ignore defects. 128 F. 529.

William H. Arnold, for appellee.

Upon a second appeal the court will not review or correct its former decision, even though it be erroneous in point of law or based upon a misconception of fact. 56 Ark. 170; 55 Ark. 609. The question is narrowed to one of contributory negligence. 86 Ark. 244; 82 Ark. 11; 205 U.S. 1; 138 Ala. 487. The question of negligence does not arise in the act of an employee going between the cars. 205 U.S. 1. Congress, by the act in question, intended to make the duty of the railroad company absolute. 210 U.S. 281. A litigant should not be permitted to urge other grounds of objection to an instruction than were urged in the trial court. 83 Ark. 61; 66 Ark. 46; 75 Ark. 76; 75 Ark. 325; 56 Ark. 602; 69 Ark 637; 82 Ark. 391; 73 Ark. 594; 81 Ark. 190; 65 Ark. 54; 65 Ark. 255. The absolute duty of the defendant to furnish automatic couplers is not satisfied by the use of ordinary care. 163 F. 517; 162 F. 775; 168 F. 175; Id. 236; 169 F. 407 The fact that a car can be repaired more conveniently at another place does not justify its being moved in a defective condition. 169 F. 372; 71 Ark. 445; 83 Ark. 591; 86 Ark. 244; 162 F. 145; Id. 403. It is the duty of one desiring a more specific instruction to request one in proper form. 88 Ark. 225. If the employees constantly and notoriously violated the rules of the company for a long period of time, this amounts to an abrogation of the rules by the custom. 77 Ark. 405.

Kinsworthy & Rhoton and Jas. H. Stevenson, in reply.

If the lever on one side of the car fails to work, the employee should go to the other side; and if, instead of doing so, he goes between them to uncouple them, he is guilty of contributory negligence. 108 F. 747. The Safety Appliance Act abolishes the defense of assumed risks only; and does not apply to the defense of contributory negligence. 106 S.W 441; 91 F. 229; 10 Am. Neg. Rep. 166.

OPINION

FRAUENTHAL, J.

This was an action instituted by A. B. York, as administrator of the estate of J. C. York, for the benefit of his estate and next of kin against the St. Louis, Iron Mountain & Southern Railway Company, the defendant below, for the alleged negligent death of said J. C. York. Upon a former trial in the circuit court a verdict was directed in favor of the defendant. This court reversed the judgment rendered upon that verdict and remanded the cause for a new trial. The report of the opinion of this court upon that appeal will be found in 86 Ark. 244. Upon a second trial of the cause in the circuit court a verdict was returned in favor of the plaintiff for $ 9,950; and from the judgment entered thereon the defendant now prosecutes this appeal.

The testimony in the case tended to prove the following facts: J. C. York was a brakeman in the employ of the defendant on one of its freight trains, running from Knobel, Arkansas, to Memphis, Tennessee. Upon the arrival of the train at Wynne, which was a junction of several branch lines of defendant's railway, it became necessary to set out upon the side track a box car loaded with flour and bound over one of those branch lines for Helena. The engine attached to a coal car, and this box car was backed in on the side track; and York was sent to uncouple the box car, while making a flying switch. He proceeded on the proper side of the box car to make the uncoupling with the lever, but the lever which worked the coupler was out of order and did not work, and he then went between the cars to lift the pin with his hand. The cars were moving slowly, and he walked along with them slowly backward as he uncoupled the cars. In getting out from between the cars after making the uncoupling his foot was caught in some way just on the outside of the rail, presumably in the unblocked frog or by the guard rail which was between the track upon which the cars were moving and a track intersecting it. The cars were somewhat wider than the track, and when his foot became thus detained he was thrown down by the moving car, and the oil boxes of the coal car crushed him between them and the ground, breaking his spine and otherwise injuring him in such a manner that he suffered intense agony for six weeks and then died from the effects of the injury. The coupler on the box car was out of repair. The chain which connected the pin with the pin lifter was broken, so that no uncoupling could be made with the lever attached to this coupler. Upon the opposite side of these cars and on the end of the coal car there was a lever attached to the coupler on the coal car, by which the cars could have been uncoupled, but this could only be reached by going around or over the cars. There was also testimony showing that the cars could have been stopped by the brakeman giving a signal to the engineer

The above is in effect the same testimony that was introduced in the cause on its first trial in the circuit court, and upon which the former decision was rendered by this court. The same witnesses testified on the two trials, and their testimony on the material issues involved in this case was substantially the same. The matters which were adjudicated by this court upon the former appeal cannot be retried in the circuit court nor can they be reviewed upon this second appeal by this court. The questions of law there determined became the law of this case on this subesquent trial and appeal, whether we may now believe them to be right or wrong. The finding of the facts upon the former appeal cannot be binding as to the finding of the facts in this second trial, because the testimony on the second trial might be different from or additional to that given on the first trial. But the principles of law determined and announced upon the former appeal are binding, and must stand as the law of this case; and if the testimony upon this second trial is substantially the same as on the first trial, then the former decision of this court upon all questions of law involved in this case must be followed on this appeal. Porter v. Doe, 10 Ark. 186; Scott v. Fowler, 14 Ark. 427; Perry v. Little Rock & F. S. Ry. Co., 44 Ark. 383; Taliaferro v. Barnett, 47 Ark. 359, 1 S.W. 702; Vogel v. Little Rock, 55 Ark. 609, 19 S.W. 13; Dyer v. Ambleton, 56 Ark. 170, 19 S.W. 574; Fordyce v. Edwards, 65 Ark. 98, 44 S.W. 1034; Heard v. Ewan, 73 Ark. 513, 85 S.W. 240; St. Louis, I. M. & S. Ry. Co. v. Neal, 83 Ark. 591, 98 S.W. 958; 3 Cyc. 492.

Upon the former appeal this court determined that the proximate cause of the injury was not the unblocked frog in which York's foot may have been caught, but was the failure of the company to furnish a coupler which would enable the brakeman to uncouple the cars without going between them. The duty to provide such a coupler was a statutory duty imposed by the act of Congress of March 2, 1893.

The evidence upon this second appeal shows that the defendant failed to furnish such a coupler in working order as was required by the said act of Congress; and that the failure to furnish such a coupler in working order was the direct and proximate cause of the injury. Usually, the master is only bound to exercise ordinary care to provide suitable appliances and tools for the servant, and is liable for damages caused by defective machinery only where the evidence shows that he neglected to repair the defect after having notice thereof, or when by the exercise of ordinary care he would have known that the same was defective. But where the statute requires the master to furnish a particular safe appliance, and he violates that statutory duty, and injury is caused thereby, the rule is different. In such event the violation of the statutory duty from which the injury results makes out a prima facie case of negligence, if not an absolute case.

It is urged by counsel for plaintiff that the duty imposed by the act of Congress to furnish the particular character of a coupler and in effective working condition, is an absolute duty, and that no kind of exercise of care on the part of the railroad company will relieve the company from liability for the damages that ensue from an injury caused by a failure to actually furnish such a coupler and in good working order. And to sustain that position they refer to the following cases: Schlemmer v. Buffalo Rochester, etc.,...