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

• Decision Date: 04 January 1909
• Citation: 115 S.W. 175,88 Ark. 548
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HAWKINS
• Court: Arkansas Supreme Court

115 S.W. 175

88 Ark. 548

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

Supreme Court of Arkansas

January 4, 1909

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

Judgment affirmed.

Lovick P. Miles, for appellant.

The negligence of the master may be assumed when known to exist as well as the ordinary hazards of the service. 86 Ark. 508. If the servant realizes the danger, and still elects to expose himself to it, then, although he acts with the greatest care, he may, if injured, be held to have assumed the risk. 77 Ark. 367. By appellee's own testimony clearly showing that he knew of the negligence and appreciated the danger and made complaint of it, we have a clear case of assumption of risk of master's negligence, and he ought not to recover. Appellants request for peremptory instruction in its favor should have been granted.

Sam R. Chew, for appellee.

The question of assumed risk in this case was one of fact (under the testimony) for the jury to determine, and not of law for the court. While he assumed, in entering upon the service, all the risks ordinarily incident to that service, he did not assume the risk growing out of the negligence of the master. 77 Ark. 367; Id. 458; 112 S.W. (Ark.), 886.

OPINION

HILL, C. J.

Elsey Hawkins was employed by the appellant company as a cinder shoveller, working in a cinder pit in its yards in Van Buren. His testimony tended to prove: That while intent upon his work an engine was backed into the cinder pit, without the usual signals of approach, and he was injured by it. The day before this occurred he had complained to his foreman of the hostler operating this engine having taken engines into the cinder pit without signals, and threatened to quit his employment unless the required signals were given of the approach of engines to the pit. His foreman promised to speak to his superior, and that night told him he had reported it to his (the foreman's) superior, but he did not know what he (the vice-principal) had done about it. The next morning Hawkins returned to work, and knew that the same hostler of whom he had complained was handling engines. He was injured about eight o'clock, after the hostler had taken three or four engines into the cinder pit.

From a judgment in plaintiff's favor the railroad company has appealed, and says that the trial court should have given a peremptory instruction for the defendant on the ground that his evidence showed that he had assumed the negligence of the company by reason of which he suffered his injury. This occurrence took place subsequent to the passage of the act of March 8, 1907, charging the master with fellow servant's negligence.

Unquestionably the negligence of the master, whether committed directly or through a fellow servant, may be assumed. Choctaw, O. & G. Rd. Co. v. Jones, ...