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

• Decision Date: 03 May 1909
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. LEDFORD
• Court: Arkansas Supreme Court

119 S.W. 1123

90 Ark. 543

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

Supreme Court of Arkansas

May 3, 1909

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

Judgment affirmed.

Lovick P. Miles, for appellant.

Negligence of the master, whether committed directly or through a fellow servant, may be assumed. 77 Ark. 367; 79 Id. 53; 86 Id. 507. Only when the facts are undisputed should the court declare as a matter of law that the risk was assumed. 79 Ark. 53; 205 U.S. 1. The permit to ride the engine given by 'phone was not sufficient; it should have been in writing. 75 Ark. 579; 81 Id. 369. It is error to submit to the jury abstract issues that find no support in the testimony. 77 Ark. 109; Id. 261; 85 Id. 532; 79 Id. 225. An employee assumes all the risks connected with the business in which he is employed of which he has notice, even though they are produced by the negligence of the master. 51 Am. & Eng. R Cas., N. S., 365; 205 Ill. 643; 69 N.E. 79.

Sam R Chew, for appellee.

An employer is chargeable with knowledge of whatever it is his duty to find out and know. Thompson on Neg. § 5404. Knowledge of the company may be inferred from the notoriety of the habitual custom of the employees in disregarding the rule. 77 Ark. 405; 86 N.E. 243. The burden of proving contributory negligence was on appellant unless appellee's evidence within itself convicted him of the contributory negligence that caused the injury. 48 Ark. 460; 77 Id. 1. Leaving the cars upon the main track was an act of negligence on the part of appellant, authorizing a recovery by appellee for the injuries he received by reason the collision. 67 Ark. 377. The judge is not required to sit still and see justice defeated. 76 Ark. 258.

OPINION

MCCULLOCH, C. J.

The plaintiff (appellee) sustained physical injury while in the service of defendant, and sues to recover the damages, alleging that the same were caused by negligence of other servants of the company. The injury occurred at night in October, 1907, when the plaintiff was a minor, eighteen years of age. He was working for the company at Van Buren, Arkansas, which is a division point, as call boy, his duties being to call enginemen at night to report for service. His headquarters, while on duty, were at the round house, which is about a mile distant from the town of Van Buren and from the passenger station.

After calling the engineer and fireman on the night in question to report for the purpose of taking out a west-bound passenger train, he stopped at the station and waited for the arrival of the incoming passenger train, in order to ride to the round house on the engine which was detached from that train. While riding on the engine, it collided with some freight cars on the main track, and plaintiff was severely injured. The engine was in charge of a hostler, and was backing along the main track at the time of the occurrence in question. The freight cars were on the main track temporarily, while switching was going on in the yards. No signal lights were on them, and, according to the rules of the company, none were guarded by the men engaged in doing the switching, and that a stop signal was given to the approaching engine on which plaintiff was riding.

There is evidence tending to show that it was customary for call boys to be allowed to ride engines to and from the round house, and learned counsel for defendant frankly concedes in argument that this question was correctly submitted to the jury, and that it is settled by the verdict. It is also conceded that the hostler in charge of the engine was guilty of negligence which caused the injury, and that the defendant is liable for the damages caused thereby, unless the plaintiff was guilty of contributory negligence, or unless he assumed the risk of the danger.

Under the act of March 8, 1907, the defendant is responsible to its servants for damages caused by the negligence of a fellow-servant. The statute reads as follows: "Section 1. That hereafter all railroad companies operating within this State, whether incorporated or not, and all corporations of every kind and character, and every company, whether incorporated or not, engaged in the mining of coal, who may employ agents, servants or employees, such agents, servants or employees being in the exercise of due care, shall be liable to respond in damages for injuries or death sustained by any such agent, employee or servant, resulting from the careless omission of duty or negligence of such employer, or which may result from the carelessness, omission of duty or negligence of any other agent, servant or employee of the said employer, in the same manner and to the same extent, as if carelessness, omission of duty or negligence causing the injury or death was that of the employer."

The hostler was known as a recklessly swift engine driver, and the evidence tended to show that plaintiff knew of this when he went on the engine to ride with him. It is therefore contended that with this information on the part of the plaintiff he is deemed to have assumed the risk, and error is assigned in the refusal of the court to give the following instruction: "VI. If you find that the plaintiff knew of the unfitness or habitual reckless running of the hostler, Boland, and with full knowledge of this he boarded the engine to ride to the round house, and as a result of the reckless or negligent running of Boland the collision occurred, and plaintiff was injured thereby, your verdict must be for the defendant."

Prior to the enactment of the statute above quoted, the master was not responsible in law for injuries to a servant caused by the negligence of a fellow servant unless he (the master) had failed to exercise ordinary care in the selection and employment of competent servants to work with the injured servant. The risk of dangers from negligent acts of fellow servants was held to be the ordinary risks of service which each servant assumed. Risks of dangers arising from negligence of the master in employing incompetent or reckless servants...