St. Louis & San Francisco Railroad Company v. Rie

• Decision Date: 15 December 1913
• Citation: 163 S.W. 149,110 Ark. 495
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. RIE
• Court: Arkansas Supreme Court

163 S.W. 149

110 Ark. 495

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. RIE

Supreme Court of Arkansas

December 15, 1913

Appeal from Jackson Circuit Court; R. E. Jeffery, Judge; reversed.

Judgment reversed and cause remanded.

W. F Evans and W. J. Orr, for appellant; Stuckey & Stuckey, of counsel.

1. Under the undisputed testimony no legal liability on the part of appellant is shown. 63 P. 294; 162 Mass. 319, and cases cited; 93 Ark. 387; 99 S.W. 693.

2. The court erred in permitting counsel for appellee to make a closing argument, after he had made an opening argument to the jury, and appellant's counsel offered, without argument, to submit the case on the evidence, instructions and the argument of appellee's counsel.

Jones & Campbell, for appellee.

1. The uncontradicted evidence shows that the foreman knew, or by the exercise of ordinary care could have known, that the gun was on the hand-car.

It is the duty of a master to use reasonable or ordinary care to provide a reasonably safe place in which the servant is to work. This is not an assignable duty, but, if delegated, the master is liable to the same extent. Thompson on Neg. (2 ed.), § 3763. It is also a primary duty to use ordinary care to keep the place reasonably safe and to protect it from volunteers and intermeddlers. Id. (2 ed.), § 3755; 87 Ark. 324. It is his duty not to order the servant into a dangerous place, himself knowing the danger, or by the exercise of ordinary care could know it, when the servant is ignorant thereof or does not understand and appreciate the peril. 77 Ark. 458; 79 Ark. 20; 95 Ark. 290-295; 97 Ark. 364.

The foreman stood in the place of the appellant. His acts were the appellant's acts, and for his negligence appellant is liable. 54 Ark. 289; 58 Ark. 76; 81 Ark. 598; 56 Ark. 238; 87 Ark. 324; 98 Ark. 38.

The proposition that there is no duty to warn where the servant has equal knowledge with the master, can have no application where the servant does not actually know of the danger and appreciate the peril, and is acting in an emergency under the direct orders of the superior. 53 Ark. 466; 77 Ark. 458; Id. 375; 97 Ark. 364; 95 Ark. 295.

2. The court might with propriety have instructed a verdict for the plaintiff. But it was not error to submit the questions of fact to the jury. If they have returned a verdict for the proper party, the judgment will not be disturbed. 54 Ark 300.

OPINION

HART, J.

Appellant prosecutes this appeal to reverse a judgment against it in favor of appellee for damages sustained by him while in its employ. The facts relative to the accident, as testified to by appellee himself, briefly stated, are as follows:

In April, 1912, George A. Rie, a boy eighteen years old, was working as a section hand on the Bonnerville branch of appellant's line of railway in Jackson County, Arkansas. He had worked on this section at intervals for about a year and for about three months before he received the injuries for which he sues. On the 28th day of April, 1912, the section crew consisted of John Cannon, foreman, Lewis Matthews and George A. Rie. The foreman and these two hands worked in the forenoon and came into Estico, a small station on this line, where the foreman lived, for dinner. They worked at the station about an hour after dinner, when the tie train came along. The foreman, Matthews and Rie boarded this train to unload ties along the track. The foreman said to his stepson: "Bob, will you help bring the hand-car down for us to come home on?" Fred, a young son of the foreman, said: "Yes, Bob; we will take the car down there and take the gun along and kill some frogs." Prior to this time, the young son of the foreman had, on several occasions, gone out on the hand-car with him and the section crew, and carried a twelve-gauge shotgun along, for the purpose of shooting frogs and birds. Sometimes he would leave the gun in the car, and sometimes he would take it out and hunt while the men were at work. On the day in question, the gun was not in the car at the time the section foreman asked his son and stepson to take the car down to the next station, but the tools usually used by the men while at work were in the hand-car. The foreman and the two section men got on the tie train and unloaded ties until they came to the next siding, and there the car containing the ties was set out. The section foreman and his men continued at work unloading the ties, and while so engaged the boys brought the hand-car down, left it on the main track, and went off some distance away. The section foreman saw the mail train approaching, and directed the section men to take the car off the track. George Rie proceeded in a hurry to the hand-car, and, lifting it by the handles on one end, turned it around and pulled it off the track. Just after he had gotten it off of the track the mail train passed by, going at the rate of about eighteen miles per hour. Before Rie lifted the hand-car from the track, he threw a couple of jacks off of it, but left the tools on the car. After the mail train had passed, he took hold of the hand-car and proceeded to lift it back on the track. While he was doing this, the gun fell off of the hand-car, struck the rails, exploded, and some of the shot struck Rie, severely injuring him. Rie says that he heard the son of the foreman tell his step-brother that he would carry the gun along and shoot some frogs, but says that when he went to lift the car off of the track he was in a hurry to get it off before the mail train arrived, and did not think about looking to see if the gun was in the hand-car; that he did not see the gun in the hand-car, and did not know it was there until after he was shot. He admits that he knew that the boy had carried the gun on other occasions while they were at work, and sometimes left it in the car. Rie said that the section foreman was as close to his son as he was when the boy stated that he would carry the gun along, but did not say or do anything that would indicate whether or not he heard the boy say he would take the gun along.

It is first contended by counsel for appellant that the court erred in submitting the case to the jury. They rely, for their contention, on the cases of Chicago, R. I. & P. Ry. Co. v. Smith, 10 Kan.App. 162, 63 P. 294, and Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 125 S.W. 439.

The Smith case is similar to this in that a section man was injured by a shotgun in a hand-car which exploded while the car was being pushed along by the section foreman and his crew. In that case, however, the undisputed evidence shows that the gun belonged to the section foreman, and that it was carried along and used both by himself and by Smith, who was injured, for purposes of their own. They carried it along for the purpose of shooting game while at work along the section, and both of them used the gun for this purpose. And the injured employee knew that it was on the hand-car for that purpose on the day he was injured. Here, the injured employee had never participated in the use of the gun, and did not know that it was on the hand-car at the time he was injured, except as that fact might be inferred from the declaration of the foreman's little son that he would carry it along on that day. He says, however, that he was directed to take the hand-car off of the track in a hurry, and for that reason did not examine to see if the gun was there, and did not think about it being there.

In the Sweeden case, during the noon hour, when passengers were not accustomed to ride on the elevator, the servant in charge invited a child to ride in it with him to the top story of the building so that they might go into a room and view a parade. The court said that this act of the servant was not for the purpose of furthering the interests of his employer, nor was his act incident to the business of the elevator company by which he was employed. That it was wholly and exclusively a purpose of his own, and, for that reason, the company was not liable. The court held, however, that the master is civilly liable for an injury caused by the negligent act of his servant, when done within the scope of his employment, even though the master did not authorize or know of such acts, or may have disapproved of or forbidden them, but that the master is not liable for an independent, negligent or wrongful act of a servant, done outside of the scope of his employment.

In the...