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

Citation105 S.W. 878,84 Ark. 377
PartiesST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DUPREE
Decision Date18 November 1907
CourtSupreme Court of Arkansas

Appeal from Lawrence Circuit Court; Frederick D. Fulkerson, Judge affirmed.

James Dupree sued the St. Louis, Iron Mountain & Southern Railway Company, alleging that he was employed by defendant to inspect its cars, and that while he was making an inspection under a car defendant's employees kicked several cars violently against this car, causing the same to pass over plaintiff's right arm and leg, so that plaintiff lost his right arm and suffered the partial loss of his right leg. Defendant denied negligence on its part, and alleged that defendant was negligent.

The jury returned a verdict for plaintiff in the sum of $ 6,000. Defendant has appealed.

Affirmed.

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

1. The alleged admission of the appellant's agent, Arthur, made at a time too remote to be a part of the res gestae, and not authorized by the company, were erroneously admitted as evidence. 52 Ark. 78; 57 Ark. 287; 61 Ark. 52; 63 Ark. 87; 67 Ark. 147; 68 Ark. 225; 19 L. R. A. 733, note; 66 Ark. 495; 70 Ark. 289; 69 Ark. 560; 80 Ark. 533; 72 Ark. 581.

2. If it be conceded that the rule for the protection of car inspectors was not enforced, appellee was, nevertheless guilty of contributory negligence, as a matter of law, in violating a rule made for his protection, and in doing so assumed the risk of the extra hazard incident thereto. 77 Ark. 405; 85 Minn. 326; 48 Ark. 334; 98 Ill.App. 207; 79 Ark. 53; 84 F. 944; 15 S.W. 108; 39 S.W. 967; 154 N.Y. 474; 68 Ark. 316; 4 Thompson, Negligence, §§ 4616, 4643; 94 Ga. 535; 91 N.W. 1034; 168 Mass. 579; 81 P. 221; 22 Col. 263; 99 Md. 471; 122 U.S. 189. A car inspector assumes the risk incident to that employment while a train is being made up in the usual and ordinary manner. White's Supp. Thompson, Negligence, § 4779; 73 S.W. 555; 160 Mass. 45; 4 Thompson, Negligence, § 4616; 78 Md. 249; 55 L. R. A. 908.

W. A. Cunningham and Jones & Hamiter, for appellee.

OPINION

HILL, C. J.

In brief, the case was this: Dupree was a car inspector, engaged in inspecting cars of the railroad company at Hoxie. Arthur was an engine foreman in charge of the engine, switching, making up and breaking up trains in the Hoxie yards. He and Dupree were in different departments of service, and were not working together for a common purpose, and were therefore not fellow servants, within the meaning of sections 6658-60, Kirby's Digest. There were two kinds of inspection for cars, one called intermediate inspection, which was a general inspection without going into particular defects, and another called the interchange inspection. There was no interchange inspection in the Hoxie yards, and the inspections of Dupree were intermediate.

There is a conflict in the evidence as to the duties of the inspector in making an intermediate inspection. Dupree says that it was often necessary, in order to properly make it, to place his body under the cars; while others say that such action was not necessary for such inspection.

There was a rule of the company requiring inspectors to place in the daytime blue flags, and in the nighttime blue lights, at either end of the cars being inspected, and only the person placing the signals was authorized to take them up. These signals were to protect the cars during inspection from movement. There is testimony tending to show that this rule was habitually disregarded, and its habitual disregard known to the foreman in charge of Dupree's department; and, on the other hand, there is evidence that it was the proper way to protect the car during inspection.

About 9 o'clock, a dark rainy night, Dupree and his fellow inspector, Cooper, went to their duties of inspecting cars. According to Dupree's testimony, Arthur passed them with his switch engine and some cars, and was notified that they were engaged in inspecting certain cars, and Arthur told them that he was going to Hoxie crossing to do some work there. This trip and work would have required his absence for twenty or twenty-five minutes. Within five or ten minutes after he left, while Dupree was under a bad-order car, inspecting the same with his torch, the car was struck by Arthur's switch engine, causing Dupree the loss of an arm and a serious injury to his leg. A different version of the occurrence was given by Arthur.

The case was largely tried upon the question of whether or not the rule requiring the blue signals had been abrogated; and the chief contention here is that there was error in certain modifications of instructions requested by the defendant which told the jury that Dupree assumed all the risks and hazards incident to his duties as car inspector and if he failed to comply with the rule, and was injured while failing to comply with it, such injury was one of the assumed risks of his employment, for which he could not recover, and that he would be guilty of contributory negligence in undertaking to do this work without obeying the rule; which were modified by the court by stating that such was the law unless said rule was abrogated. The jury was instructed that the burden of showing the abrogation of the rule was upon the plaintiff, and correctly instructed what was necessary in order to show that the rule was abrogated. Where a master promulgates a rule for the...

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33 cases
  • Aluminum Company of North America v. Ramsey
    • United States
    • Supreme Court of Arkansas
    • March 1, 1909
    ...not going on the track where other cars were likely to be moved, but where, if other employees performed their duty, they world not come. 84 Ark. 377. Instructions were properly refused which assumed that appellee had exclusive charge of the train and cars, engine and track and control over......
  • Matthews v. Chicago, Burlington & Quincy Railroad Company
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    • United States State Supreme Court of Missouri
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    ...v. Railroad, 98 Mo. 62; Frances v. Railroad, 110 Mo. 387; Bussey v. Railroad, 58 S.E. 1015; Anderson v. Railroad, 102 Minn. 355; Railroad v. Dupree, 84 Ark. 377; Feneff Railroad, 82 N.E. 705. (8) The question whether the rules of a master have been nullified by their habitual disregard is a......
  • St. Louis, Iron Mountain & Southern Railway Company v. Holmes
    • United States
    • Supreme Court of Arkansas
    • November 23, 1908
    ...Railroads, § 327; 4 Thompson on Negligence, § 5089; 94 F. 781; 116 U.S. 642; 37 S.W. 75; 117 Ind. 439; Kirby's Digest, § 6659; 67 Ark. 1; 84 Ark. 377. Appellee was not informed of any requiring him to see that cars were inspected. An employee is not bound by any rule which is not brought to......
  • Wortz v. Fort Smith Biscuit Co.
    • United States
    • Supreme Court of Arkansas
    • October 21, 1912
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