St. Louis & N. A. R. Co. v. Midkiff

• Decision Date: 06 May 1905
• Citation: 87 S.W. 446
• Parties: ST. LOUIS & N. A. R. CO. v. MIDKIFF.
• Court: Arkansas Supreme Court

87 S.W. 446

ST. LOUIS & N. A. R. CO. v. MIDKIFF.

Supreme Court of Arkansas.

May 6, 1905.

Appeal from Circuit Court, Boone County; Elbridge G. Mitchell, Judge.

Action by William D. Midkiff against the St. Louis & North Arkansas Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

G. J. Crump, for appellant. Pace & Pace and Morris M. Cohn, for appellee.

HILL, C. J.

Midkiff was a laborer working under Bennett, a section foreman, and, while returning from his work on the railroad to Harrison on a hand car, was directed, in the presence of Bennett, by Wm. Wynne, to get off and take up a signal flag. The speed of the hand car had been slackened, and Midkiff got off the side of a front corner of the car, and either from a jerk of the car or stumbling, or both, lost his balance, and, after struggling about 30 feet, fell, and was run over by the car. He was badly injured. He brought suit, and alleged negligence of the company, in that the car was not properly under control when he was ordered to get off, and by reason of such lack of control the injury was produced. Attached to the rear of the hand car was a push car, heavily loaded. The push car had no brakes upon it, and the customary way to check it was to have a man insert a shovel between the wheels, thereby making an effective brake. The testimony shows that this was not done, and, on one side, it was shown, because of the failure of the section boss to order it done, and, upon the other side, because of a failure of the man on the car (a fellow workman) to do it. Wm. Wynne was called a "straw boss" by the men—a term to indicate that in the absence of the real boss, Bennett, he was clothed with his authority; and there was some evidence (not very satisfactory, however) that also in the presence of Bennett he was a superior servant. The case was tried chiefly upon questions as to the relations of Wynne and Bennett to Midkiff, and these questions were properly submitted to the jury; and, if they were the only questions in the case, the court would not disturb the verdict. The alleged negligence of the company in overloading the push car and not having it under control was not specifically denied, but was sought to be avoided by alleging that the negligence charged was due to the fellow servants of Midkiff. The court, however, instructed the jury that negligence was denied, and upon that theory the case was presented to the jury, and seems to have been so treated by...