St. Louis Southwestern Railway Company v. Harrell

• Decision Date: 18 February 1924
• Docket Number: 177
• Citation: 259 S.W. 739,162 Ark. 575
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. HARRELL
• Court: Arkansas Supreme Court

259 S.W. 739

162 Ark. 575

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. HARRELL

No. 177

Supreme Court of Arkansas

February 18, 1924

Appeal from Monroe Circuit Court; George W. Clark, Judge; reversed.

Judgment reversed and cause remanded.

John R. Turney and Lamb & Frierson, for appellant.

1. Instruction No. 1 entirely ignores the questions of assumed risk and contributory negligence, and the latter part thereof assumes negligence on the part of the defendant in placing the skids. It is practically a peremptory instruction to find for the plaintiff. Conceding that other instructions were given submitting the questions of assumed risk and contributory negligence, the best that can be said of the situation is that they are conflicting. 83 Ark. 202: 140 Ark 162; 143 Ark. 122; 144 Ark. 454; 146 Ark. 208;. 70 Ark. 79.

2. The same error appears in instruction No. 4. Even though the defendant was careless in placing the skids, it was entitled in view of the fact that plaintiff was an old and experienced employee, to have submitted to the jury the question of his assumption of risk, if they found that defendant was negligent in that respect. 56 Ark. 216; 233 U.S. 492.

Emerson & Donham and Bogle & Sharp, for appellee.

1. Instruction No. 1 only states an elementary principle of law. In cases presenting a similar state of facts, the question of negligence has been uniformly held a question of fact that must be submitted to the jury. 95 Ark. 291; 116 Ark. 277; 123 Ark. 119. It is admitted that all questions of law applicable to the facts were given. It can make no difference that separate instructions were given to cover these questions since all of them were to be considered together. 105 Ark. 358; 28 Ark. 8; 34 Ark. 383; 46 Ark. 141; 43 Ark. 184.

2. Instruction No. 4 was not erroneous in telling the jury that appellee assumed all ordinary risks and hazards incident to his work, but did not assume any negligence on the part of the master or of his fellow-servants. 95 Ark. 291; 67 Ark. 209; 77 Ark. 367; 90 Ark. 226; 89 Ark. 427; 90 Ark. 556; 92 Ark. 102; Labatt on Master and Servant, § 279. See also as to the duties of the master, 123 Ark. 119; 104 Ark. 1; 93 Ark. 564; 97 Ark. 553; 105 Ark. 392; 116 Ark. 277.

OPINION

SMITH, J.

Appellee, the plaintiff below, was employed by the appellant railroad company on March 14, 1922, on which day he was engaged in unloading stringers, which were to be used in repairing a bridge across the White River near Clarendon, and, while so engaged, he sustained serious injuries, and he instituted this suit under the Federal Employers' Liability Act to recover damages to compensate the injury. He recovered a judgment, after a trial before the jury, to reverse which this appeal has been prosecuted.

We make no extended statement of the testimony, as the theory upon which a recovery was asked sufficiently appears, in the instructions which we will set out and in our discussion thereof.

Over the objections of the appellant the court gave an instruction numbered 1, which reads as follows: "1. You are instructed that, if you find from the evidence in this cause that plaintiff was employed by defendant to assist in repairing its bridge over White River, in Monroe County, Arkansas, and, while in the discharge of his duties as such employee, was unloading timbers from one of defendant's flat-cars by dropping same moon skids placed against said car, and further find that other of defendant's employees negligently and carelessly placed one of said skids against the timbers on said ear in such a negligent and careless manner as to cause the end of one of said timbers to strike plaintiff, while he was in the exercise of due caution for his own safety, then you should find for the plaintiff."

An instruction numbered 2 dealt with the measure of damages, and instruction numbered 3 with that of contributory negligence, and correctly told the jury that, if plaintiff was guilty of negligence which contributed to his injury, his damages should be diminished in proportion to the amount of negligence attributed to him.

Instruction numbered 4, which was also given over the objections of appellant, reads as follows: "4. Defendant has interposed, as a defense herein, that plaintiff assumed the risk of the injury which he received, and you are instructed that while, as a matter of law, plaintiff assumed all risks of injury ordinarily incident to the duties he was performing for defendant as its employee, you are further instructed that he did not assume the risk of being injured by negligence of other employees of defendant, and, if you find that his injuries were due to the negligence of other employees, you should not find for defendant upon the ground of assumed risk."

It will be observed that instruction numbered 1 undertook to define the conditions under which the plaintiff might recover, and directed the jury to find for the plaintiff, if there was a finding (1) that an employee of the railroad company, other than appellant himself, had negligently and carelessly placed one of the skid's against the timbers on the car in such a negligent and careless manner as to cause the ends of one of said timbers to strike the plaintiff (2) while the plaintiff was in the exercise of due caution for his own safety.

In other words, this instruction told the jury to find for the plaintiff if his fellow-servants were negligent, and he was not. The defense of assumption of risk, which the railroad company interposed, was thus eliminated.

This error was emphasized by the 4th instruction, which dealt with that subject. It was the theory of the company that plaintiff was an old and experienced bridge man, and that he had assisted in loading and unloading many carloads of stringers at the bridge where he was injured and at other bridges, and that he knew when skids...