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

• Decision Date: 16 January 1939
• Docket Number: 4-5331
• Citation: 124 S.W.2d 964,197 Ark. 527
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY CO., J. M. KURN, TRUSTEE, v. CHILDERS
• Court: Arkansas Supreme Court

124 S.W.2d 964

197 Ark. 527

ST. LOUIS-SAN FRANCISCO RAILWAY CO., J. M. KURN, TRUSTEE, v. CHILDERS

4-5331

Supreme Court of Arkansas

January 16, 1939

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.

Judgment reversed.

J W. Jamison, Warner & Warner and Paul E Gutensohn, for appellant.

Partain & Agee and Ralph W. Robinson, for appellee.

SMITH J. HUMPHREYS, MEHAFFY, JJ., dissent.

OPINION

SMITH, J.

Appellee filed a complaint alleging two separate causes of action, under the Federal Employers' Liability Act, against the trustees in bankruptcy of the appellant railway company.

The first count in the complaint alleges an injury suffered in September, 1936. Appellee was then a section hand, with thirty years' experience in that service, and he testified that he was more familiar with that work than was Hess, his foreman. The section crew of which appellee was a member consisted of himself, his foreman, and two other section men--Bryan and Perryman.

This crew, while riding on a motor or hand-car, saw a train approaching, which was not an unusual event. The crew stopped the car and proceeded to remove it from the track. No attempt is made to predicate negligence upon the time or manner of removing the car, which was done by two of the men lifting each end thereof. Perryman and appellee were at the front end of the car, lowering it down the railway embankment or dump, which was about four feet high. Hess and Bryan were at the other end, near the railroad track. There was a space of about five feet between the rear end of the car and the railroad crossties. As the train approached, Hess and Bryan released their hold and testified that they did so to avoid being struck by the train. One of the controverted questions of fact in the case is whether it was necessary for Hess and Bryan to release their hold on the car to protect themselves. Appellee testified that they could have retained their hold on the car without endangering their safety, and that if they had done so the car would not have rolled down on him and Perryman, as it did do. No orders were given by the foreman, and none appear to have been necessary, except to remove the car from the track. All the men understood how the car should be removed.

Appellee testified: "Clyde Bryan and Jake Hess, the section foreman, turned loose of the car, and let it right on down on Perryman and me and that rod that comes from the sills on the car sticks out. We both turned sideways to check the car and that rod caught me right here." Appellee testified that as a result of being struck in this manner he sustained a hernia from which he has since suffered. A judgment was recovered by appellee on this count in the sum of $ 4,000.

The testimony is sharply conflicting as to whether appellee sustained a hernia or other serious injury; but we pretermit a discussion of the injury, as we dispose of the case upon a consideration of the question of liability for the injury, without regard to its extent.

Appellee knew that Hess and Bryan had released their hold on the car, but stated that "I thought they ought to have helped hold the car." He described the cause of the injury as follows: "I was just trying to hold it, I was trying to hold it to keep it from going on down the dump, trying to keep it from going on down where it would be hard to get back up." Appellee and Perryman did hold the car and it did not run down the dump. This was an act of their own volition. Perryman does not claim to have been injured. There appears to have been no reason why appellee might not have stepped aside to a place of safety, as did the foreman and Bryan, except that appellee knew it would be difficult to roll the car up the dump, if it were allowed to roll down.

As has been said, the suit was brought under the provisions of the Federal Employers' Liability Act, and the sufficiency of the evidence to establish negligence is governed by the terms of that act and the applicable provisions of the common law. Missouri Pacific R. R. Co. v. Montgomery, 186 Ark. 537, 55 S.W.2d 68. A headnote to the case of Toledo, St. Louis & Western R. R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513, reads as follows: "3. Except as specified in § 4 of the Federal Employers' Liability Act, the employee assumes the ordinary risks of his employment, and, when obvious or fully known and appreciated, the extraordinary risks and those due to negligence of his employer and fellow employees."

Here, there was no superior knowledge on the part of the foreman, nor were any orders given by him to appellee as to the manner in which he should perform his duties. He knew Hess and Bryan had released their hold on the car, and there was no reason why he, too, should not have done so, except that he knew it would be difficult to roll the car up the dump, if it were allowed to roll down. He knew better than anyone else whether his strength would enable him to prevent the car rolling, and we, therefore, conclude that any injury which he may have sustained-- whatever its extent may be--was the result of a risk which he had assumed as an incident to his employment.

Appellee's injury did not prevent him from remaining in the service of the railway company, and with the loss of only a few days' time he continued working as a section hand, under the same foreman, until August 10, 1937, at which time he sustained a second injury, to compensate which he sued in the second count of his complaint, and upon this count a judgment was recovered in his favor for $ 6,000, making a total recovery of $ 10,000 on the two counts.

Appellee's second injury occurred in the following manner. The section crew remained unchanged except that Raymond Temple had replaced Bryan. The motor car had been taken off the track at the noon hour while the men ate their lunch. After eating, the car was placed back on the track or re-railed, as that action was called.

Appellee detailed the circumstances of his injury as follows. This was the same motor car that I was in the first time I was hurt, and the same foreman. We were putting the car on the track to go back to work. Me and Rufus Perryman picked up the front end and started west with it, and when we came around here the right hind wheel hit the rail; it didn't take it, and when Mr. Perryman dropped it, it would not have hurt me any worse if you had stabbed a knife into me. To put the motor car on the track you just pulled it over there and leave the rear wheels in the middle of the track, and the two head men will pick up the front end of the car and come around here with it, and then the two rear men pick up their end and come around here with it, and that is all that is done. I was standing astraddle of the east rail holding the motor car. We had our backs to it. Perryman was to my left on the same end. Hess and Temple were at the rear of the car. I couldn't see them, as I had my back to them. Perryman was at the left end, south of me, and we were headed north. I was working on the north side of the rail, on the right-hand corner. Perryman and I were lifting that end of the car, and we had it off the ground and the track, Mr. Rufus Perryman--when the weight of the car came down on me, I looked over my shoulder to see what was going on, and he was grabbing hold of the car. He had broken loose, and he grabbed for it and the weight of the motor car struck me and injured my back, and I haven't been clear of pain since.

In answer to the question, "It (the car) dropped suddenly?" appellee answered: "Yes, sir, it went down."

Upon his cross-examination appellee testified as follows: "Q. You were not looking at Perryman? A. Not until the weight of the car hit me. Q. You don't know what he did? A. I don't know what he did. All I know is that he dropped the car."

Perryman testified as follows: As we started to pick up the car, to re-rail it, Mr. Childers said: "The...