St. Louis-San Francisco Railway Company v. Bates

• Decision Date: 03 March 1924
• Docket Number: 200
• Citation: 258 S.W. 992,163 Ark. 335
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BATES
• Court: Arkansas Supreme Court

258 S.W. 992

163 Ark. 335

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BATES

No. 200

Supreme Court of Arkansas

March 3, 1924

Appeal from Crawford Circuit Court; James Cochran, Judge; reversed.

Judgment reversed, and cause remanded.

W F. Evans and Warner, Hardin & Warner, for appellant.

1. The plaintiff is barred of recovery by the contributory negligence of the deceased. It is a uniform rule that, if an employee sustains an injury by reason of his violation of the employer's rules, regulations, orders or commands, he will be barred from any right of recovery from the employer on the ground of the latter's negligence. 129 Ark. 520; 124 Ark. 437; 100 Ark. 380; 82 Ark. 334; 85 Ark. 237; Labatt Master & Servant, 2d ed., § 1279; 74 A. 283; 99 N.W. 220; 49 So. 942; 46 S.E. 17; 96 Ark. 461. The cause of action sued on arose in Oklahoma, where contributory negligence is a defense barring recovery. 129 P. 747. And the laws of that State will govern as to liability. 113 Ark. 265; 64 Ark. 291. Contributory negligence should be inferred as a matter of law, whenever the injury results from the servant's noncompliance with a specific order given by the master or his representative. Labatt, Master & Servant, 2d ed., § 1279; 75 A. 970; 86 P. 650; 21 P. 679; 80 A. 565; 120 N.W. 281; 75 P. 749. If deceased had obeyed his instructions he would not have been injured. Obedience to rules and regulations intended for his protection was a duty he owed, and failure therein rendered him guilty of contributory negligence. 18 R. C. L. 659, § 152; 23 A. L. R. 309. Choice by the servant of a dangerous way to discharge a duty, with knowledge of the danger, a safe way being available, of which he is advised, constitutes contributory negligence, precluding recovery. 49 So. 792; 105 Ill.App. 594; 123 S.W. 22; 61 S.E. 657; 71 A. 1053; 108 F. 747.

2. Instruction No. 1, given at plaintiff's request, was erroneous and prejudicial in that it ignored material issues in the case supported by abundant testimony. 93 Ark. 564; 149 Ark. 270, 283; 77 Ark. 128; Id. 201; 95 Ark. 108. Being inherently erroneous, a specific objection was not necessary; yet a correct instruction covering these issues requested by the defendant amounted to a specific objection to the erroneous instruction. 153 Ark. 454.

3. The principle involved in instruction 9 requested by the defendant is sound and correct, and the court erred in refusing it. Labatt, Master & Servant, 2d ed., § 1279; 43 N.E. 181; 7 So. 94; 92 Ill.App. 74; 56 N.W. 846; 136 F. 162.

4. The modification of instruction 10 requested by defendant, served only to confuse and mislead the jury and completely nullified it. The proposition intended to be submitted was covered by no other instruction, and the modification was clearly erroneous. 98 Ark. 22.

Sizer & Gardner and G. L. Grant, for appellee.

1. It is shown that it was Bates' duty to operate the turntable, and that Cox had no right to start it up or run it; that, if any employee desired to use the turntable, and Bates was not there, it was the duty of such person to signal for Bates, a regular signal being provided for that purpose, and to wait for Bates to come and start the turntable, and that employees were under orders to see the hostler or his helper, Bates, if they wanted to use the turntable. The burden of proving contributory negligence was upon the defendant, and the law presumes the deceased to have been careful until the contrary affirmatively appears. 48 Ark. 460, 475; 46 Ark. 423, 437; 78 Ark. 355, 361. Cox's testimony was not sufficient to overcome this presumption, and insufficient to require the court to take the case from the jury. 165 S.W. 951, 952; 93 Ark. 227; 82 Ark. 86, 89; 114 Ark. 393, 397.

2. No merit in the objections to instruction No. 1. Other instructions were submitted along with No. 1, which concretely submitted the question of contributory negligence. If appellant was dissatisfied with the concluding part of the instruction, it should have made specific objection and suggested proper changes. 149 Ark. 533.

OPINION

MCCULLOCH, C. J.

Appellee 's intestate, Marion E. Bates, was killed while working in the service of appellant at Sapulpa, in the State of Oklahoma, and this action was instituted to recover damages sustained by the widow and next of kin of the decedent on account of such death, which, it is alleged, was caused by the negligence of other servants of appellant in the operation of a turntable. There was a trial of the cause before a jury, which resulted in a verdict in favor of appellee for recovery of damages.

Bates was employed as a hostler's helper at the turntable, his immediate superior being J. T. Horn, the hostler of the roundhouse. The duties of Horn and Bates were to put engines in and out of the roundhouse, using the turntable for that purpose, and to keep the machinery in operating condition-- among other things, to put grease and oil in the cups through which they were supplied to the bearings of the machinery. The turntable was operated by electricity, and the motor and other machinery were situated in a cab, or housing, on the side of one end of the turntable. In a box inside of the cab there was a switch which turned the electricity on and off. When the door of this box was closed, the switch was connected so as to turn on the electricity, but, when the door of the box was open, the switch was disconnected. The machinery which moved the turntable was put in motion by a lever inside the cab. There was a sliding door in the housing around the machinery, and the grease-cups could be reached by a man getting partially inside of the housing through this sliding door. It was Bates' duty to grease the cups, and he was engaged in that duty when he came to his death, his body being partially inside of the housing, with his feet and legs sticking out.

There was testimony introduced by the appellant tending to show that it was not necessary for Bates to go inside of the housing to grease the cups, and that they could be reached, some of them, by the worker sitting in the hole or niche in the wall of the table-pit, and that others could be reached while standing in the pit underneath the cab.

When the death of Bates occurred, he had, as before stated, crawled into the housing to put grease in the cups, and had left the switch open. Cox, a negro foreman of a labor gang, came up with his gang, and desired to put a push-car on the turntable and thence into one of the stalls of the roundhouse. He caused his men to push the car onto the turntable, and then went into the cab, where the switch-box was found to be open and the switch connected, and, taking hold of the lever, he set the turntable in motion. After the turntable moved a few feet, it caused a jerk, and Cox, according to his testimony and that of other witnesses, stopped the movement of the turntable by use of the lever, and, after looking around and seeing nothing, started the turntable again, when there was another jerk, and, on further examination, it was found that Bates' body had been drawn into the machinery by the movement of the table, and crushed. He died in a very short time, without recovering consciousness.

It was, according to the undisputed testimony, the duty of Bates to move the turntable when he was present. His duties frequently called him away. According to the testimony adduced by appellee, no one else except Bates, Horn, or the electrician, Ford, was authorized to move the turntable, and if any other employee desired the table to be moved, in the absence of either of the three mentioned above, it was his duty to hunt up one of these persons for the purpose of having the table moved.

It is undisputed that Cox set the table in motion, and, according to the testimony of appellee, Cox had no right to do that, in the absence of Bates or the other two persons who had authority to permit the table to be moved. On the other hand, appellant introduced testimony sufficient to warrant a finding that it was the duty of Bates to connect the switch when the turntable was to be used and disconnect it when it was not to be used, that the opening of the switch-box was a signal that the switch was connected and the table ready for use, that any of the gang foremen, including Cox, was authorized to use the turntable when the switch was found to be connected, and that these foremen frequently used the turntable in that way.

The testimony of appellant tends to show that Bates was instructed by his superiors not to go into the machinery of the turntable for the purpose of greasing the cups without disconnecting the switch, and that the switch was not to be connected except when the turntable was in readiness to be moved by any one who was authorized to use it.

It is thus seen that, according to the undisputed evidence, the switch was connected when Cox set the machinery in motion, and the principal issue of fact in the case narrowed down to the question whether or not Cox was authorized to move the turntable when he needed to do so and found the switch connected.

It is contended by counsel for appellant, in the first place, that the evidence is not sufficient to support the verdict in favor of appellee on the issue of negligence, but we do not think that this contention is sound. The evidence adduced by appellee shows that Cox had no right to move the turntable in the absence of Bates, and that it constituted negligence on his part, for which appellant was responsible, if he moved the turntable in violation of the rules. On the other hand, if, as the evidence adduced by appellant tended to show, there was an established rule that Bates was to connect the switch as a signal for the readiness of the turntable to be used, or disconnect it when the table...