St. Louis Southwestern Railway Co. v. Compton
Decision Date | 07 October 1918 |
Docket Number | 159,154 |
Citation | 205 S.W. 884,135 Ark. 563 |
Parties | ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. COMPTON |
Court | Arkansas Supreme Court |
Appeal from Miller Circuit Court; Geo. R. Haynie, Judge; reversed.
Judgment reversed and cause dismissed.
Daniel Upthegrove, J. R. Turney and Gaughan & Sifford, for appellant.
The court erred in its instructions. No negligence was proven and plaintiff clearly assumed the risk. 90 Ark. 407; 108 Id. 483; 58 Id. 125; 89 Id. 50; 106 Id. 436; 76 Id. 441.
Mehaffey Keeney & Dalby and J. M. Carter, for appellee.
Appellee was guilty of no negligence but appellant was. Appellee did not assume the risk. 182 S.W. 83; 129 Id. 88; 203 Id. 840; 232 U.S. 94; 182 S.W. 81.
OPINION
The appellee instituted this action against appellant for damages for personal injuries, and a judgment was rendered in his favor from which is this appeal. The facts are substantially as follows:
The appellee was a section hand in the employ of appellant. He was 57 years of age. On the 3rd day of July, 1917, he was engaged in the work of repairing appellant's road bed. There were no others in the section gang at that time except another man and the section boss. The section gang were required to carry along a motor car which was operated by power generated by the explosion of gasoline. The motor car was rolled out and lifted on the railway track. Appellee and the other man started the car. The foreman told the appellee and his fellow servant to get on the other side of the car and start it. Appellee was on one side, and his fellow helper on the other. Appellee put his right side to the car, shoved it slowly and when the engine began to exhaust, he sprang on. In starting the car he went in a trot. They had made three or four stops, each time starting the car in the above manner. Appellee described the manner in which he received his injuries as follows:
Appellee was employed on the morning of the 2nd of July and was on the car operated by the section gang on that day. The car, on that day, was started a half dozen times. It was started the same way every time. There was nothing to keep appellee from looking at the men and from seeing how it was done. On the next day appellee helped to start the car. Appellee's foreman did not explain to him how to start the car except that he showed appellee where to set his foot. He did not explain to appellee that there was any danger in doing that. Appellee, when he applied for the job, told his foreman that he was inexperienced. There were no running boards or steps on the sides of the car where a man could step on after the car was started. There was no self-starter on the motor. It was about 18 inches or 2 feet between the front wheels and hind wheels of the car. The car is just a plank table that goes out from the wheels for the men to ride on and to put a box of tools on.
The section foreman testified in regard to the injury and the appliance with which appellee was working as follows: This witness further testified
The other servant was a step-son of the appellee and he testified substantially corroborating the testimony of the appellee as to the manner of the injury, and he further stated
It was shown that there were five section hands working on the day before the injury to appellee.
The appellee alleged that the appellant was negligent in not having sufficient men in the gang to properly handle the car and in not warning the appellee of the danger in starting and getting on the car, and in furnishing the appellee a car that was not equipped with a self-starter, and that had no steps or platform upon which the appellee could step safely from the ends of the ties to the top of the car. The appellant denied specifically the allegations of the complaint, and pleaded that the appellee assumed the risk, and that he was also guilty of contributory negligence. The majority having reached the conclusion that the cause must be reversed for another reason, it is unnecessary to determine whether the testimony was sufficient to sustain the verdict on the issues of negligence and contributory negligence; and it may be conceded for the purpose of this decision that the instructions...
To continue reading
Request your trial-
Davis v. Chrisp
... ... 241. The original complaint ... was against the Missouri Pacific Railway Company, and was ... dismissed upon demurrer sustained to it. The amended ... Kerley v. Hoelham, 8 A. L. R. (Okla.) 141; ... Porter v. St. Louis- San Francisco Ry. Co., ... 51 L.R.A. 721 ... Counsel ... ...
-
St. Louis-San Francisco Railway Co. v. Barron
...Okla. 15; 41 Ark. 542; 90 Ark. 387; 93 Ark. 484; 198 S.W. 529. Plaintiff assumed the risk, and cannot recover. 170 P. 485; 254 U.S. 415; 135 Ark. 563. See also 153 236; 137 Ark. 95; 149 Ark. 77. Instruction No. 2 was erroneous in that it assumed the existence of certain facts not proved in ......
-
Arkansas Short Leaf Lumber Company v. Lattimore
...for appellant. No negligence shown by the proof of the acts of negligence charged, and appellee assumed the risk. 56 Ark. 232; 89 Ark. 50; 135 Ark. 563; 147 Ark. 94; 148 Ark. 66. Court erred giving instruction numbered 1 for appellee, and in not giving appellant's peremptory instructions re......
- St. Louis-San Francisco Railway Co. v. Blevins