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

• Decision Date: 08 June 1908
• Citation: 112 S.W. 168,86 Ark. 507
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MANGAN
• Court: Arkansas Supreme Court

112 S.W. 168

86 Ark. 507

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

Supreme Court of Arkansas

June 8, 1908

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

Judgment affirmed.

Tom M Mehaffy and J. E. Williams, for appellant.

1. Deceased assumed the risk as one of the hazards of the employment in which he was engaged; he had used the switch for a year, and knew of the conditions. The court should have given the peremptory instruction to find for defendant. 82 Ark. 14; 37 Minn. 326; 33 N.W. 908; 5 Am. St. 851; 108 Wis 530; 53 S. R. A. 657; 35 W.Va. 500; 55 Ark. 483; 18 S.W. 933; 138 Ind. 290; 37 N.E. 721; 43 Am. St. 384; 87 Me. 352; 32 A 965; 167 Pa. 220; 15 Mont. 290; 39 P. 85; 81 Ark. 343; 77 Id. 367; 56 Id. 232; 41 Id. 542; 54 Id. 389; 56 Id. 206; 57 Id. 76; 68 Id. 316; 80 Wis. 350; 1 Labatt on Master and Servant, 260, 266, 267. Here the danger was obvious, and no prudent man would have taken the risk. The promise to repair does not excuse him. 77 N.E. 1120; 220 Ill. 614; 91 S.W. 161; 115 Mo.App. 520; 63 A. 719; 141 F. 966; 55 Ark. 484.

2. He assumed the risk in stepping off at a place known to be dangerous when he could have stepped off at some other place just as well. 165 Mass. 16; 137 Ind. 208; 129 Id. 327; 112 Id. 592; 130 Id. 242; 136 Id. 242; 79 Me. 297; 12 Ill.App. 369. And this is true even when a promise to repair by the master is shown. 20 Am. & Eng. Enc. Law, p. 127; 55 Ark. 484.

3. As a matter of law, deceased assumed the risk, and the court should have so held. 82 Ark. 14; 36 Kan. 129; 79 N.E. 222; 80 Id. 65; 108 N.W. 1021; 145 Mich. 509; 87 P. 973; 34 Mont. 590; 57 Ark. 461; 73 Id. 383; 76 Id. 96; 77 Id. 757.

4. We especially call attention to the error in instruction No. 8. 77 Ark. 461, 367.

Smelser & Vaughan and Scott & Head, for appellee.

1. Deceased had a right to rely upon the repairs being made, as promised by the master. 216 Ill. 624; 75 N.E. 332; 54 Ark. 289; Wood on Master and Servant, § 352; 154 U.S. 200; 1 Labatt on Master and Servant, § 432; 81 S.W. 487; 41 P. 551; 51 N.E. 449; 78 Id. 417; 50 S.W. 601; 72 Id. 1028; 58 N.E. 416; 16 P. 46; 90 N.W. 976; 53 L. R. A. 653; 21 S.W. 326. The promise was made by one in authority. 6 S.E. 53; 29 N.E. 714; 80 F. 257. It was sufficient. 67 Minn. 358; 63 Ill.App. 165; 96 Ill. 616; 105 N.W. 568; 96 Ill.App. 616; 37 N.W. 908; 33 N.W. 908; 88 S.W. 167; 49 N.Y. 521; 49 F. 723; 139 Id. 519.

2. Deceased did not assume the risk as a matter of law; it was a question for the jury, even where there is no promise to repair. 109 F. 436; 183 U.S. 695; 97 F. 423; 53 Id. 65; 128 U.S. 91; 138 N.C. 401; 18 S.W. 976; 155 Mass. 155; Ib. 513; 4 S.E. 211; 49 S.W. 204; 62 P. 964; 108 Ill. 538; 45 A. 676; 27 P. 728; 18 S.E. 584; 30 S.W. 125; 26 S.E. 669; 50 P. 834; 74 N.W. 377; 52 Id. 983; 58 N.E. 416; 50 S.E. 703; 49 F. 723; 52 Id. 87.

3. If he knew there was some risk attached, this would not, as a matter of law, bar a recovery. 30 N.E. 366; 67 Id. 609; 47 N.W. 1037; 22 So. 742; 30 A. 16; 29 N.E. 464; 62 N.W. 692; 31 S.E. 276; 20 N.W. 147; 24 Id. 311; 77 Ark. 367; 79 Id. 53; 48 Id. 333.

4. There is no contributory negligence. Wood, Master and Servant (2 Ed.), § 378; 18 Am. Rep. 412; 8 Allen, 441; 103 F. 265; 21 S.W. 326; 53 Ark. 458; 82 Id. 137; 1 Labatt, Master and Servant, § 300; 79 Ark. 137, 241; 78 Id. 520; Ib. 355, 251; 83 Id. 61; 82 Id. 343; 80 Id. 169.

5. The plaintiff's instructions were correct, and there is no error in No. 8. 84 Ark. 74; 75 Ark. 76; 99 S.W. 73; 69 Ark. 632; 56 Id. 594; 65 Id. 54; 73 Id. 594; 83 Id. 61; 75 Id. 325; 76 Id. 224; 77 Id. 458.

6. Defendant's instructions were not applicable to the case. They all told the jury, as matter of law, that deceased assumed the risk if he knew the condition of the ground, or might have known by the exercise of ordinary care, etc. See cases supra; 79 Ark. 53; 77 Id. 367; 43 S.W. 508; 83 Ark. 318; 166 U.S. 17.

OPINION

HILL, C. J.

John Mangan was a switchman in the employ of the appellant railroad company in its yards at Texarkana, and had been so employed for three years. His usual duties at the time of his injury were on the night crew. Prior to the 4th of November, 1905, he had been laying off for several days, the exact number not being shown. On said day he was called upon as extra switchman to do day work, owing to the absence of some of the day crew. Passenger train No. 5 came in the yards, and some switching had to be done, and a coach for negro passengers set out on track 21, and the train had to be prepared to go out within ten minutes of its arrival.

In the performance of his duties, Mangan rode upon a coach until near switch 22, when he alighted from the slowly moving train in order to throw said switch; and as he alighted from the train he slipped and fell under it, and was run over and horribly mangled. Three days later, after enduring great mental and physical suffering, he died in the railroad hospital in St. Louis, to which place he had been carried to receive surgical treatment.

He left a widow, who was appointed administratrix of the estate, and two children. This is an action by the administratrix to recover for the loss to the estate and to the widow and children. The jury returned a verdict for $ 5,000 on the first count, and for $ 12,500 on the second count. Judgment was entered thereupon, and from it the railroad company has appealed.

Negligence of the company was alleged to have been committed in failing to have a reasonably safe place for the performance of his duties as switchman. The facts in regard thereto, as established by the evidence which has been credited by the jury, were as follows:

The yards of the appellant company as originally constructed were level, the surface of the ground being even with the ties. But depressions had occurred in different parts of the ground, one of which existed around the head block of switch 22. It was a kind of sinking slope, a low place in the ground probably a foot and a half across on each side, and two or three or four inches deep, shaped like a dish-pan. This depression or worn place around the switch was caused by the switchmen stamping around it, and it would always be slippery when it rained. In wet weather it would be filled with water, and this rendered the place dangerous to the switchmen in the performance of their duties in that it made the ground slippery and muddy and the water concealed the exact condition of the surface underneath. This condition had existed for about a year. The proper care of the yard required that this depression be filled with cinders or gravel. The water also stood in wet weather along the track for some distance at this point, and the surface was so covered that a switchman alighting from a car could not make selection of a proper place to get off.

There had been a heavy rain the day that John Mangan was injured, and the season had been very wet. William Mangan, brother of the deceased, was also a switchman, and was extra foreman of a switch crew, and John at times worked under him, and was doing so on the day he was killed.

Several days before the injury, Mr. W. H. Saunders, the yardmaster, fell at this same switch, and William Mangan told him that it was dangerous and ought to be fixed, and Saunders promised he would have it fixed as quick as he could get the cinders for it. Shortly after this John Mangan complained to his brother about the danger at this switch, and Wm. Mangan told him of the promise of Saunders to him to have it repaired. This conversation is not more definitely fixed than a few days before John's injury.

The only material conflict in the evidence is upon three points: First, whether this depression was filled with water at the time Mangan fell; second, whether this depression was filled up with cinders before or after the accident; and third, whether he had alighted from the train in a careful and orderly manner or whether he had recklessly leaped therefrom. All of these conflicts have been settled against the railroad company, and upon this hearing it must be taken that this depression was concealed by a thin sheet of water, that the cinders had not been placed in there at the time, and that Mangan descended from the coach in a careful manner and fell on account of the slippery and muddy condition of the place where he was required by his duties to alight.

Three questions arise upon these facts: First, as to the assumption of the risk; second, as to the reliance upon a promise of repair; and third, as to the contributory negligence of John Mangan. The latter proposition may be disposed of speedily, for it presented a question of fact which has gone to the jury upon appropriate instructions, and there was no contributory negligence per se which would call on the court to interfere with the finding of the jury upon that issue.

The turning point of the case is presented in the 8th instruction, which is as follows:

"8. The court instructs the jury that if you should find from the evidence that the deceased knew of the condition of the roadbed at the point where he was injured, still, if you should further find from the evidence that the deceased complained to the defendant or his immediate foreman under whom he was working of the condition thereof, and that the said foreman thereupon advised the deceased that the defendant had promised to repair the same as soon as it could get the cinders with which to do the work, and that thereafter, relying upon such promise, the deceased continued work in the employment of the defendant, and that the danger arising from the said condition of the said premises was not so obvious, imminent or glaring that an ordinarily prudent person would not have continued in the same work, then it...