St. Louis Southwestern Railway Company v. Martin

• Decision Date: 16 June 1924
• Docket Number: 46
• Citation: 262 S.W. 982,165 Ark. 30
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. MARTIN
• Court: Arkansas Supreme Court

262 S.W. 982

165 Ark. 30

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. MARTIN

No. 46

Supreme Court of Arkansas

June 16, 1924

Appeal from Jefferson Circuit Court; T. G. Parham, Judge; affirmed.

Judgment affirmed.

J R. Turney, A. H. Kiskaddon, and W. T Wooldridge, for appellant.

Appellant's motion for a directed verdict should have been sustained. The decedent's fellow- employees owed him no duty, in switching the cars, to maintain a lookout for his safety, in the absence of a rule requiring it. An employee assumes the risk of injury arising from the nature of his employment, as well as from the particular methods and ways in which the work is carried on. 145 U.S. 418; 201 F. 54; 144 F. 56, 76 C C. A. 214; 276 F. 187; 178 N.W. 887; 158 F. 92. In this case the dangers were not obscure but were perfectly obvious, and the case comes within the exception to the rule that the servant does not assume risks which are not apparent and of which he knows nothing. 191 U.S. 64, 48 L. ed. 96. The decedent had to look out for his own safety, as appears by the undisputed testimony to the effect that the switching crews operating in the yards paid no attention to yard clerks and gave them no warning as they passed through the yards in the performance of their duties, and decedent well knew these facts. 179 P. 191. See also 121 N.E. 403; 118 Ark. 304; 95 Ark. 562, 164 S.W. 857. From the foregoing authorities it is submitted that as a matter of law there is no merit in the contention that the death of plaintiff's intestate was due to the negligence of his fellow-employees in kicking the car onto the track without having it accompanied by one of the switching crew. The bulletin introduced in evidence imposed no duty on the switching crew to maintain a lookout for decedent. Its obvious and only purpose was to protect freight in cars which was liable to be injured by severe impact, and the rule is limited to merchandise cars. 161 Mass. 125; 66 Iowa 346. If it had originally been intended to require that cars kicked in on switch tracks be manned, and intended for the protection of yard employees, that purpose was subsequently abrogated by constant and open violation of the rule. 32 S.W. 799; 77 Ark. 405; 84 Ark. 377; 117 Ark. 504. Decedent, being aware of the continuous and universal violation of the bulletin, assumed the risk arising therefrom, even if it be granted that the bulletin imposed an absolute duty on the switching crew to man a car kicked in on a switch track. 233 U.S. 492; 245 U.S. 441; 254 U.S. 415; 271 F. 268; 160 Ark. 362; 161 Ark. 122.

Rowell & Alexander, for appellee.

The lookout statute applies to railroad yards as well as to other places, and is for the benefit of employees as well as others. 88 Ark. 204; 83 Ark. 61; 80 Ark. 528; 100 Ark. 476. It is far-fetched to say that the switchmen owed decedent no duty. The extraordinary danger to which decedent was exposed is shown, first, because the kicking in of the box-car at excessive speed, without a switchman in control, and without a switchman present on the car at the point where decedent went through, for the purpose of making the joint, was a violation of the bulletin introduced in evidence; and, second, because the car must have been kicked in at terrific speed, to cause four standing cars, when struck, to suddenly close a space of four or five feet and catch decedent therein, all of which was a manifestation of negligence in all respects, and misled decedent. He had the right to assume that the switchman would conform to the requirements of the rule, and when he approached the track in question, a merchandise track, and saw no switchman on the car at the opening, he had the right to presume that there was no danger at that point. The risk arising from the violation of the bulletin was not assumed by decedent. 77 Ark. 367; 29 C. C. A. 374; 43 S.W. 510; 42 N.E. 112. And certainly he assumed no extraordinary risk such as was requested in instruction numbered 4 requested by appellant. 229 U.S. 119. Assumption of risk was an affirmative defense, and the burden of proof was on the defendant to show it, unless it was shown by plaintiff's testimony. 140 Ark. 155.

OPINION

MCCULLOCH, C. J.

Appellee 's intestate, R. C. Martin, while working in the service of appellant, was crushed between two freight cars in the Pine Bluff yards, and was fatally wounded. He lived about thirty-six hours after the injury, and suffered great pain. He left a widow and children, and this is an action against appellant, instituted by the administrator of the decedent's estate, to recover under the Federal Employers' Liability Act. It is conceded that the injury to decedent occurred while working for appellant in interstate commerce, and that, if liability on the part of appellant exists at all, it falls within the terms of the Federal statute.

Deceased was, according to the undisputed evidence, working in the yards as clerk, his duty being to check cars and to weigh them when called upon by the foreman of the switch crew to do so. The injury occurred shortly after ten o'clock on the night of October 10, 1922.

The yard office was situated north of the main line, toward the eastern end of the yard, and the track scales upon which cars were weighed were situated toward the western end of the yard and south of the tracks, which ran parallel with the main line. There were twelve of these tracks between the track scales and the main line. The yard-clerk, when on duty, usually remained in the yard office until called or directed to do particular work. When a car was placed by the switch crew on the scales to be weighed, a signal call to the yard clerk would be given from the engine by blasts of the whistle, and it was the duty of the yard-clerk to proceed immediately to the scales to weigh the car. It was necessary for the yard-clerk to cross the intervening tracks between the yard office and the scales. Decedent Martin received his fatal injury while he was crossing track No. 7, proceeding on his way pursuant to a call from the yard office to the scales to weigh a car. There were four cars, coupled together, standing on track No. 7, and another single car within about four feet of the end of the string of four cars. As Martin passed along this space between the end of the single car and the end of the string of four cars, a car which had been "kicked" in on track No. 7 by the switch crew came violently in contact with the other end of the string of cars, and threw them against the single car, catching Martin between the two cars and crushing him. It was dark in the yards at the time, and Martin had a lantern on his arm. These facts are all undisputed, and it is also undisputed that the car "kicked" in on the track was not in charge of any one, but was rolling down the track at a rapid speed, without any one on it to control its movement.

None of the employees engaged in the switching operations saw Martin as he passed along the yard and entered the space between the cars, and the first that any of them knew of Martin's dangerous situation or injury was when his groans or exclamations were heard after the impact of the cars.

The sole charge of negligence involved in the case is the act of the switching crew in "kicking" the car by a "flying switch" into track No. 7 and causing it to roll down the track at a rapid speed, without being manned by some one to control its movement.

In submitting to the jury the issue of negligence there was no cognizance taken of the "lookout" statutes of the State, which apply to the operation of switching cars in railroad yards (St. L. I. M. & S. Ry. Co. v. Puckett, 88 Ark. 204, 114 S.W. 224), no mention was made in the instructions of the court as to any statutory duty in that respect of the railway company. The action being based on the Federal statute, supra, local statutes imposing duties and liabilities are not applicable. Seaboard Air Line Ry. v Horton, 233 U.S. 492, 58 L.Ed. 1062, 34 S.Ct. 635; St. L. I. M. & S. Ry. Co. v. Steel, 129 Ark. 520.

It is earnestly insisted that the evidence is not sufficient to sustain the charge of negligence, in that, according to the method in vogue of switching cars in the yards at Pine Bluff, there was no duty resting upon the switching crew to man the freight cars "kicked" in on the various tracks, and therefore no negligence in failing to observe that precaution.

It is also contended that the deceased was fully aware of the custom with respect to "kicking" the cars onto sidetracks without manning them, and that he assumed the risk, should be held as a matter of law to have assumed the risk.

It was proved at the trial that, nearly two years before the date of the injury of Martin, the yardmaster issued a bulletin directed to engine foremen, which prescribed a rule of conduct in switching...