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

• Decision Date: 23 March 1908
• Citation: 109 S.W. 295,85 Ark. 503
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HARMON
• Court: Arkansas Supreme Court

109 S.W. 295

85 Ark. 503

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

Supreme Court of Arkansas

March 23, 1908

Appeal from Cross Circuit Court; Frank Smith, Judge; affirmed.

STATEMENT BY THE COURT.

The plaintiff, J. L. Harmon, instituted this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for injuries caused by alleged negligence of the company's servants. He was employed by the defendant as a section-hand at Hamlin, Arkansas. On the day the injury occurred plaintiff's gang of workmen, of which one DeShea was foreman, was ordered to board a work-train at Hamlin for the purpose of doing work on the track outside of that section. The men, under orders of the foreman, boarded the train with their tools, and were carried to Fair Oaks. They rode in a box car, which was used as a caboose. It had a short seat on one side, sufficient to seat two persons comfortably and three by crowding, and a long seat on the other side.

At Fair Oaks there was a car off the track, and the plaintiff and his gang were ordered to assist in getting the car back on the track, which they did. The derailed car was down on a spur and the caboose of the work-train was set out, and the relief car was backed down to the derailed car on the spur. After the car was put back on the track, DeShea, the foreman ordered the men to put their tools back on the train and get ready to go, as they were to go further with the worktrain. They put their tools on the caboose and boarded it themselves. The engine and a portion of the train then moved out of the spur, coupled to the caboose, set it out on the main track by itself, and then proceeded to do some switching. While the plaintiff was standing in the car another car was cut loose from the engine and backed or kicked down the track, violently striking the caboose, and plaintiff was hurled to the floor and severely injured. Negligence of the servants of the defendant is alleged in causing or allowing the car to run against the caboose with such violence.

The defendant denied the allegations of negligence, and alleged that plaintiff's injury was caused by his own negligence or that of his fellow-servants.

A trial before jury resulted in a verdict in favor of the plaintiff awarding damages in the sum of $ 458, and the defendant appealed.

Judgment affirmed.

T. M. Mehaffy, J. E. Williams and S.D. Campbell, for appellant.

1. There is no evidence of negligence on part of defendant.

2. If there was, it was the negligence of a fellow-servant.

3. Plaintiff was guilty of contributory negligence as matter of law. 71 Ark. 590; 83 Ark. 22.

4. It was error to refuse instructions asked by defendant. 76 Ark 106.

Smith & Smith, and J. T. Patterson, for appellee.

1. The negligence was not that of a fellow-servant. 67 Ark. 9; 77 Id. 1; 65 Id. 138.

2. There was no contributory negligence as matter of law.

3. The question of negligence or contributory negligence was for the jury, and they were properly instructed. 61 Ark.555; 98 N.C. 494.

OPINION

MCCULLIOCH, J., (after stating the facts.)

It is contended that the evidence was not sufficient to warrant a verdict in favor of the plaintiff, and that the court erred in refusing to instruct the jury peremptorily to return a verdict for the defendant. In support of this contention, it is urged that the evidence fails to show any negligence on the part of servants of the company, or that, if any negligence is shown, it was that of plaintiff's fellow-servant, and that the undisputed evidence establishes contributory negligence on the part of the plaintiff himself.

There was, we think, evidence sufficient to go to the jury, and to support a verdict, that servants of the company were guilty of negligence in kicking the car with such violence against the caboose when they knew, or ought to have known, that the plaintiff and his fellow laborers were in the caboose waiting to be transported to their work. They were ordered into the caboose by the foreman, whose orders they were bound to obey, unless obedience would subject them to danger so obvious that prudent men would not proceed. The plaintiff, by taking service with the company, assumed the ordinary hazards of his employment, which would include the ordinary risks incident to riding on freight trains when his duties called him, but he did not assume the risk of dangers caused by the negligence of the master or of servants of the company who were not his fellow-servants, in the legal meaning of that term. The evidence was sufficient to sustain a finding that plaintiff's injury was caused by an unnecessary degree of force in kicking the car against the caboose from which negligence could be inferred. Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22, 102 S.W. 387.

The negligence was that either of the foreman in failing to notify the trainmen that workmen were in the caboose, or of the trainmen who caused the car robe violently kicked against the caboose. Neither of these were fellow-servants of plaintiff. Of course, the foreman was not, as it is shown that he controlled the actions of the men. Members of the train crew were of a different department, and were not fellow-servants with plaintiff. Kirby's Digest, §§ 6658, 6659; Kansas City, Ft. S. & M. Rd. Co. v. Becker. 67 Ark. 1, 53 S.W. 406; St. Louis: I. M. & S. Ry. Co. v. Rickman, 65 Ark. 138, 45 S.W. 56.

Was the plaintiff guilty of contributory negligence? This question was submitted to the jury under proper instruction, and we think that should have been done, instead of deciding, as a...