St. Louis, Kennett & Southeastern Railroad Company v. Fultz

• Decision Date: 28 June 1909
• Citation: 120 S.W. 984,91 Ark. 260
• Parties: ST. LOUIS, KENNETT & SOUTHEASTERN RAILROAD COMPANY v. FULTZ
• Court: Arkansas Supreme Court

120 S.W. 984

91 Ark. 260

ST. LOUIS, KENNETT & SOUTHEASTERN RAILROAD COMPANY v. FULTZ

Supreme Court of Arkansas

June 28, 1909

Appeal from Clay Circuit Court, Eastern District; Frank Smith Judge; reversed.

Judgment reversed and action dismissed.

R. H Dudley, for appellant.

The deceased was a man of more than ordinary intelligence and had had experience in this work. His act in voluntarily standing upon the drawhead of the moving log loader running at the rate of five or six miles an hour, and in jumping off into the center of the track immediately in front of the loader instead of getting off at the side where a place had been provided, was negligence per se, and the court should have so held as a matter of law. 14 L. R. A. 552; 88 Ark. 20; 72 Ark 440; 69 Ark. 489; 128 F. 529.

Lamb & Caraway, for appellee.

1. Whether or not Fultz was guilty of contributory negligence was a question for the jury. 79 Ark. 53; 21 S.W. 503; 25 N.W. 104; 21 P. 574; 28 S.W. 54; 75 N.W. 704; 70 N.W. 665; 13 S.E. 566; 8 So. 357; 63 N.Y.S. 535; 76 N.E. 864.

2. If there was any rule requiring employees to get off at the side of the car, its observance was waived. 48 Ark. 333; 77 Ark. 405. The link in the drawhead was the proximate cause of the injury.

R. H. Dudley, for appellant in reply.

It was a physical impossibility for Fultz to have caught his foot in the link as it was hanging. One cannot by his own fault and in disregard of his own safety bring on an injury and then recover for it. 36 Ark. 371; 81 Ark. 1. It was Fultz' duty to take notice of the obvious danger of the position he assumed. 82 Ark. 11; 60 Ark. 438.

OPINION

BATTLE, J.

This action was brought by Belle Fultz, as administratrix of Amberson A. Fultz, deceased, against the St. Louis, Kennett & Southeastern Railroad Company, in the Clay Circuit Court for the Eastern District of Clay County, to recover damages for the alleged negligent killing of the deceased by the defendant.

Plaintiff alleged her cause of action, in part, as follows: "That on the 9th of July, 1907, the said deceased was, and for a long time prior thereto, in the employ of the appellant railroad company in the operation of its trains, and on said date was employed as foreman of a logging crew in loading logs at or near Nimmons, Arkansas, and transporting the same by railway, to Kennett, Mo. That, while said train of appellant, upon which deceased was foreman, was at Nimmons and while the same was being backed from the main line into and upon a siding or switch, and the deceased was upon the top of the rear car of said train, and while the same was being backed in and upon said siding, it became the duty of said deceased to go from the top of said car to the ground for the purpose of opening or throwing a switch, so that said train could back from the main line into and upon the siding; that in the rear end of the car upon which deceased was riding, but in the front as the train was being backed into the siding, was a link and coupling pin used by said appellant company to connect said car with and to attach same to other cars operated by appellant. That, as said deceased was getting down from the top of the car for the purpose of throwing the switch, his foot caught in the link of said car, causing him to fall to the ground, and to be run over and killed by said train...