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

• Decision Date: 15 January 1923
• Docket Number: 90
• Citation: 246 S.W. 494,156 Ark. 465
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. LANE
• Court: Arkansas Supreme Court

246 S.W. 494

156 Ark. 465

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. LANE

No. 90

Supreme Court of Arkansas

January 15, 1923

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

STATEMENT OF FACTS.

Pete Lane brought this suit against the St. Louis-San Francisco Railway Company to recover damages for personal injuries received while assisting his fellow servants in putting a motor-car on the defendant's railroad tracks. The defendant denied negligence on its part, and pleaded contributory negligence and assumption of risk on the part of the plaintiff.

According to the testimony of Pete Lane, the plaintiff, he was injured on the 12th of April, 1921, while assisting in putting a motor-car on the defendant's railroad tracks between Clayton and Stanley, Oklahoma. He was working at the time with a crew of seven men under the direction of a foreman. They had gone to the place where the injury occurred for the purpose of unloading a car of chat. They went to the place in a motorcar, and set it off of the track. They then assisted another section crew in unloading the car of chat. When they had finished, the foreman directed the crew to put the motor-car back on the track. Seven men were engaged in the work. Three of them were at one end and four at the other. After the foreman had given the orders to put the motor-car back on the track, the crew pushed the car up to the end of the ties. The plaintiff got hold of the car to help lift it up on the track, and the members of the crew at the other end pushed the car so that it was rolled over his foot. The plaintiff's foot was severely injured, and, according to his evidence, it is permanently injured.

According to the evidence adduced by the defendant, the crew was working under the direction of a foreman at the time the plaintiff was injured. Before the car was moved at all, the foreman would give a signal. The car had been removed from the rails and placed beside the track while the crew was unloading the chat. The foreman then directed the crew to place the motor-car back on the track. He first gave a signal, and the crew placed the car up on the end of the ties. The foreman then gave another signal for the crew to lift the car on the rails. and the plaintiff was injured while assisting in doing this.

The jury returned a verdict for the plaintiff, and the defendant has appealed.

Judgment reversed and cause remanded

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

The testimony was not sufficient to establish negligence on the part of defendant. 1 Roberts, Federal Liabilities of Carriers, 942; U. P. R. Co. v. Hadley, 246 U.S. 330; A. T. & S. F. R. Co. v Swearingen, 239 U.S. 339. Negligence cannot be inferred merely from the occurrence of the accident; it must be proved by the party alleging it. Patton v. T. & P. R. Co., 179 U.S. 658; K. C. S. R. Co. v. Cook, 100 Ark. 467; St. L. I. M. & S. Ry. Co. v. Steel, 129 Ark. 520. Plaintiff assumed all the obvious and ordinary risks of his employment. 118 Ark. 304; 14 L. R. A. (N. S.) 952; 48 L. R. A. (N. S.) 466; 84 Ark. 270; 106 Ark. 32. If signals were not used or required in the work, then his fellow servants were not charged with any duty of protecting him by giving signals before moving the car. 104 Ark. 67; 1 Roberts, Federal Liabilities of Carriers, 959; 240 U.S. 444; 60 L.Ed. 732; 124 Ark. 431. The court erred in giving instruction No. 1, as requested by plaintiff, on the question of negligence other than the particulars charged in the complaint. 71 Ark. 518; 135 Ark. 340; 69 Ark. 380; 153 Ark. 454; 152 Ark. 90. Instruction No. 6, on the question of assumption of risk, was erroneous and prejudicial. 245 U.S. 441, 62 L. ed. 385; 233 U.S. 492, 58 L. ed. 1062; 241 U.S. 310, 60 L. ed. 1016; 244 U.S. 320, 61 L. ed. 1162.

Dave Partain and G. L. Grant, for appellee.

OPINION

HART, J., (after stating the facts).

It is first earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to warrant the verdict.

We do not agree with counsel in this contention. According to the testimony of the plaintiff, while it was not customary to give signals before moving the car, still he did not have any chance to get his foot away after they pushed the car up the dump to the end of the ties. According to his testimony, his foot was caught under the wheels of the car by the other members of the car pushing it, without giving him any warning that they were going to do so.

Of course, under the evidence for the defendant, the customary signals were given by the foreman before the car was moved and the defendant was not guilty of negligence. The evidence for the defendant, however, was contradicted by the testimony of the plaintiff, and this left the question of the negligence of the defendant and the contributory negligence of the plaintiff for the jury. If the men were working under the direction of the foreman, and only moved the car after he had given them a signal to do so, the men would have a right to rely on the giving of this signal before the car was moved. This was a proper method of doing the work, because the men could work to better advantage under signals given by the foreman than they could if each man was required to look out exclusively for his own safety. Where several men are engaged in lifting a heavy object it is fairly inferable that they could work to better advantage under concerted action...