St. Louis-San Francisco Railway Co.v. McClinton

• Decision Date: 22 October 1928
• Docket Number: 192
• Citation: 9 S.W.2d 1060,178 Ark. 73
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. MCCLINTON
• Court: Arkansas Supreme Court

9 S.W.2d 1060

178 Ark. 73

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. MCCLINTON

No. 192

Supreme Court of Arkansas

October 22, 1928

Appeal from Crittenden Circuit Court; W. W. Bandy, Judge; reversed and dismissed.

Judgment reversed and cause dismissed.

E T. Miller, E. L. Westbrooke, Jr., and E. L Westbrooke, for appellant.

Sam Costen, Wils Davis and Joe Simmons, for appellee.

OPINION

SMITH, J.

This appeal is prosecuted to reverse a judgment recovered by appellee to compensate an injury sustained by him through the alleged negligence of the members of one of appellant's switching crews.

Appellee was employed, at the time of his injury, by a compress company at West Memphis, Arkansas. The compress company has two rows of sheds, in which bales of cotton are stored, the larger being about 1,800 feet in length. The shorter row of sheds is parallel to the larger one. These rows are divided by partitions into sections, and the one at which appellee was working had eleven sections, and appellee had been unloading cotton out of railroad cars into section No. 9.

The appellant railroad company has switching tracks along both sides of the longer row of sheds, up, and down which tracks cars are placed for loading and unloading. There are four removable platforms connecting the two rows of sheds, which, when in position, cross the switch-track which runs between the two rows of sheds. By the use of these platforms cotton unloaded into the shorter row of sheds is carried to the compress, and while these platforms are down or in place no switching is done or could be done on the switch-track between the two rows of sheds.

Appellee worked in section 9 until the noon hour, when work was suspended for lunch, thirty minutes being allowed for that purpose. Going to his lunch, appellee crossed the switch-track running in front of and parallel with the row of sheds where he had been at work, and went to the home of Gus Woods, where he ate his lunch. The railroad tracks and the compress sheds run nearly north and south, and appellee was working on the south end of the larger shed, and on his return to his place of work he climbed between two cars. These cars, with several others, were attached to a switch engine, which could not be seen by appellee because of a curve in the switch-track. Appellee went between the cars as a short way of returning to his work, and he testified that he had seen other employees of the compress company do the same thing. On behalf of the railroad company the testimony was to the effect that, when any one was seen crossing or attempting to cross between the cars, warning was given of the danger; but there was no testimony that appellee had been warned.

Appellee did not know there was an engine attached to the string of cars between two of which he attempted to cross, and, as he did so, the cars came together and caught his foot between the drawhead and deadwood of a car, and injured him severely.

The jury returned a verdict for substantial damages, and this appeal has been duly prosecuted.

Respective counsel discuss the question whether appellee, at the time of his injury, was a mere trespasser, a licensee, or an invitee, for the purpose of determining the degree of care due appellee by the railroad company; but we have found it unnecessary to determine this question, for the reason that, in our opinion, the negligence of appellee is greater than that of the defendant railroad company, and this fact prevents a recovery by him.

It is provided by § 8575, C. & M....