St. Louis, Iron Mountain & Southern Railway Company v. Fuller
| Decision Date | 20 April 1908 |
| Citation | 109 S.W. 1160,86 Ark. 65 |
| Parties | ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. FULLER |
| Court | Arkansas Supreme Court |
Appeal from Faulkner Circuit Court; Eugene Lankford, Judge reversed.
Reversed and remanded.
Lovick P. Miles, for appellant.
Under the facts shown in evidence and uncontradicted, the court should have granted a peremptory instruction for the appellant. Not only did the deceased assume the risks ordinarily incident to his employment, but also he must be held to have assumed the extra hazard to which he voluntarily subjected himself and the consequences of his own contributory negligence. 78 Ark. 213; 77 Ark. 376; 56 Ark 206; 143 Mass. 107; 165 Mass. 171; 80 Minn. 1; 86 Me. 400; 91 Me. 268; 170 U.S. 57; 191 U.S. 64; 170 U.S. 665; 56 Ark. 206; 65 Minn. 337; 57 Ark. 461.
Carmichael Brooks & Powers, Sam Frauenthal and P. H. Prince, for appellee.
If the power driving wheel brakes of the engine had been in good working order, the engineer could have stopped it in time to have avoided the injury. There is no evidence that deceased knew the brakes were in bad order, but if he had known it he did not, under the Federal statute, assume the risk. An employee does not assume the risks arising from the master's negligence, nor from the failure of the master's failure to comply with statutory requirements. Safety Appliance. Act, §§ 1 and 8; 57 Ark. 377; 44 Ark. 525; 59 Ark. 103; 77 Ark. 637; 78 Ark. 219; 70 Ark. 299; 67 Ark. 208; 82 Ark. 595; 194 U.S. 140; 4 Penn. (Del.) 387; 116 F. 867.
Marie Fuller, as administratrix of the estate of Sylvester Fuller, deceased, sued St. Louis, Iron Mountain & Southern Railway Company for damages on account of injuries caused by the negligence of the defendant. She alleged in her complaint "that on the 21st day of July, 1906, Sylvester Fuller was an employee of the defendant as a brakeman on its freight train, operated and run through said Chicot County; that on said day said Sylvester Fuller, under direction of the defendant, was engaged in doing station switching for defendant at Dermott, a station on defendant's line of railroad in said Chicot County; that in doing said switching at said time and place it was necessary, and said Sylvester Fuller was directed by said defendant, to assist in poling a freight car from the spur track to the main track of defendant's line of railroad; that in performing this duty, and under direction of defendant, said Sylvester Fuller used a piece of iron as such pole, which was furnished by said defendant as the tool for performing this duty; that, while said Sylvester Fuller was thus engaged in performing this duty, the defendant did carelessly and negligently run the engine of said freight train back on said Sylvester Fuller, crushing him between said engine and freight car; that at the time the engine of defendant was defective and unsuitable for use; that the air brakes on said engine were in bad order and discontinued, and that said engine was not provided with proper appliances for braking power; and that this defective and unsuitable condition of said engine was well known at the time to the defendant, and was wholly unknown to said Sylvester Fuller.
Plaintiff says that, "as the said engine was being run towards said Sylvester Fuller, while he was thus engaged in doing said duty of switch-poling, the engineer of defendant in charge of said engine at the time saw the perilous condition in which Sylvester Fuller was placed prior to the injury, and in ample time to have stopped the engine and prevented the injury, had not said engine been in such a defective condition, as above set forth, and the said defendant, through its said negligence, did fail to stop said engine and did not stop the same, but did carelessly and negligently run the same against the said Sylvester Fuller, crushing him between said engine and said freight car on said spur track, causing him such injury that he died therefrom."
The defendant denied each and every allegation of negligence, and alleged, in further defense, that the intestate of appellee was guilty of contributory negligence in failing to exercise due care for his own safety...
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