St. Louis Southwestern Railway Company v. Ellenwood

• Decision Date: 24 April 1916
• Docket Number: 357
• Citation: 185 S.W. 768,123 Ark. 428
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. ELLENWOOD
• Court: Arkansas Supreme Court

185 S.W. 768

123 Ark. 428

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. ELLENWOOD

No. 357

Supreme Court of Arkansas

April 24, 1916

Appeal from Dallas Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

Edw. A Haid, A. L. Burford, F. G. Bridges and W. T. Wooldridge, for appellant.

1. Under the Federal Employer's Liability Act, as construed by the courts, under the evidence there is no liability:

Because no negligence was proven.

Because appellee assumed the risk.

The car was a bad order car. 233 U.S. 492, 501-3; 92 A. 1060; 144 P. 762; 118 Ark. 304; 177 S.W. 875; 95 Ark. 562; 167 S.W. 128; 125 Id. 1056; 58 Tex. 434; 135 Mass. 418; 61 Ill. 131; 59 Kans. 72; 144 P. 763; 76 Ark. 69; 7 N.W. 337; 179 U.S. 658; 211 Id. 459; 29 N.W. 173; 44 S.E. 709; 96 F. 713; 169 Id. 557; 105 S.W. 747; 65 F. 48; 67 Id. 507, 510; 14 A. 735; 119 Tenn. 401; 104 S.W. 1088.

2. It was error to give appellee's instructions 1, 2, 3 and 4 and to refuse appellant's instructions 4, 6, 7, 11 and 13.

3. The cause should be reversed for improper conduct of appellee's attorney. 6 Ark. 537; 104 Id. 616; 40 S.W. 352; 11 Ga. 203; 17 Id. 364; 34 Id. 379; 12 Ill. 531; 12 Kans. 539; 36 N.W. 583; 11 N.W. 668; 45 F. 542; 55 S.E. 216; 95 P. 540; 53 So. 803; 164 S.W. 1036; 147 N.W. 566; 113 P. 186.

4. The judgment is excessive.

W. D. Jackson, Pace, Seawell & Davis, for appellee.

1. The evidence is sufficient to sustain the verdict. There was negligence and appellee did not assume the risk. 78 Ark. 213; 17 Id. 209; 198 F. 1; 98 Ark. 145; 77 Id. 367; 79 Id. 53; 232 U.S. 94; 169 F. 567; 191 U.S. 64; 187 F. 949; 67 Ark. 217; 92 Id. 560; 87 Id. 443; 82 Id. 11; 179 F. 801; Sher. & Redf. on Negl. (4 ed.), § 198; 196 U.S. 51; Cyc. 1140; 1156-7, 1168, 1275.

2. There was no error in the instructions. 201 F. 56; 235 U.S. 376; 238 Id. 507; 232 Id. 94; 89 Ark. 424; 93 Id. 564; 92 Id. 102.

3. There was no improper conduct of either the jurors or attorneys. 104 Ark. 622; 238 U.S. 507; 26 Ark. 323, 334; 20 Id. 36; 34 Id. 341; 40 Id. 454; 66 Id. 545; 32 Oh. St. 328; 50 A. 217; 34 Iowa 41; 38 N.E. 136; 4 P. 977; 105 Mo. 24; 49 Kans. 643; 237 Ill. 148; 68 Miss. 432; 57 S.W. 52.

4. The verdict was not excessive.

OPINION

HART, J.

W. C. Ellenwood sued the St. Louis Southwestern Railway Company to recover damages for personal injuries which he alleges he sustained by reason of the negligence of the railway company while in its employment as yard master. The defendant denied liability upon the ground that it was not guilty of negligence and that the plaintiff assumed the risk.

The issues were tried before a jury which returned a verdict for the plaintiff. From the judgment rendered the defendant has appealed. The material facts relating to the happening of the accident are as follows:

The plaintiff was severely injured on the night of December 21, 1914, by falling or being thrown from the roof of a car in a train which was being stored on a side track in defendant's yards in the city of Pine Bluff, Arkansas. The plaintiff was thirty-nine years old and had been engaged in railroad work practically ever since he was twelve years of age. He started as call boy and worked in that position for about eight years. He then became a brakeman and served in that capacity until the latter part of the year 1897. Since that time he had been serving as yard master and conductor. He had been working as night yard master for defendant for about ten months when he was injured.

The repair shops of the defendant were situated at Pine Bluff and the yards there were about four miles long. The yards contained a number of tracks upon which trains are received and are made up and sent out of the yards. The yards also contained tracks on which cars are stored. The cars that are sent in to be repaired are usually stored on what are called rip-tracks. It is the duty of the yard master to receive trains and store them on the various tracks in the yards and to make up trains that are made up at Pine Bluff. At the time the plaintiff was injured he went to work at seven o'clock in the evening and quit at seven o'clock in the morning. The yard master had an office in the yard and when the day yard master went off duty, he left a train card which advised the night yard master of the condition of the tracks in the yards. There was also posted in the office a "line up" which gave the number of the regular trains, the time of the extra trains, the direction and time of arrival of the trains. This "line-up" gave no idea of the character of the trains or what they contained. This information is obtained from the manifest or consist. The consist gave information which showed the class of loads in the train, where they were going, their tonnage, whether empties, bad-order or good-order cars. Bad-order cars were usually noted "B. O. Shops," which meant they were bad-order cars to go to the shops. When a train of empties was to arrive ordinarily the message would simply contain the number of the train and the number of empty cars in it.

On the night of the injury the plaintiff said he went to the office of the yard master and examined the clips posted there and that there was nothing in them advising him that a bad-order train was due to arrive that night. He went on out in the yard to work as there were a great many trains coming in that night, and while out there received information that train number 500 consisting of about ninety empty cars was due to arrive at 11 P. M.; that this information was delivered to him in the yards by the train dispatcher but he was not advised that it was a bad-order train; that it was the duty of the dispatcher to notify him if there were bad-order cars in the train; that the only information he had was that it was a train of empties, consisting of about ninety cars; that about twelve o'clock he received information that extra train number 500 would be in ahead of number 15 or right behind it; that the dispatcher gave him this information; that as soon as he received this information, he went to the north end of the yards to receive the trains which were coming while he was talking to the dispatcher; that it was about two o'clock at night; that it was dark, cold and sleeting some; that he went out and personally headed the trains in on track number 3 and told them to double back on the Dewey track; that he meant by this for them to store all the cars on number 3 that it would hold and take the rest to the Dewey track; that track number 3 would hold about sixty of the cars; that when he told them to go to the Dewey track he was asked by one of the train crew, "Where is the Dewey? That he got on the train to show them where the Dewey track was and that he intended to get down and ride back when he was sure they were back in on the Dewey track; that he started to get down off of the cars and while doing so looked around and saw that there was no one there to take care of the cars and there not being much time, he went on top and began to signal the engineer to slow down; that he saw that he must ride on the rear end of the cars because there was no one else to do so; that he walked to the second car to the rear and was still giving the slow signal, the last signal that is given before the signal is given to stop; that the track was a little rough and the motion of the car made him mis-step from the running board to the side of the car; that as he made the step he saw that there was a plank off of the roof; that he tried to over-step the hole caused by the missing plank and fell off. He supposed he over-stepped the hole and slipped and fell off of the car; that he does not remember where he fell, but does remember trying to catch his feet as he stepped over the hole.

Other witnesses for the plaintiff testified that two boards were gone off the top of the car near the center and that two were off at the end of the car and that the end crown moulding was gone; that under the boards was the tin roof of the car and that this tin roof was four or five inches below the boards that were gone; that this would make a hole there from four to six inches deep extending from the running board to the outer edge of the car. The plaintiff and other employees of the company for him testified that when a car was in this condition that it was customary to temporarily repair the roof, or upon a failure to do that, to rail the running board of the car with 2x4 pieces.

On the part of the defendant it was shown by several witnesses who worked in the yards that they knew that extra train number 500 was a bad-order train and was due to arrive some time during the night; that it consisted of about ninety cars and that most of them were bad-order cars; that the car upon which the plaintiff was walking when he was injured was a bad-order car and was so marked on each side of it; that the board on each side of the car contained the words "B. O. Pine Bluff Shops," printed on the opposite corners of it; that there was also marked in yellow chalk, which would not wash out by rain, the words "B. O. Rip." This mark meant bad-order, rip track or repair track. The printed letters on the board were about one inch and one half letters and the boards were fastened on the side of each end of the car by being nailed. The letters meant bad-order and the car was being billed to Pine Bluff shops.

W. P. Turner a switchman testified, that he knew that extra number 500 was a bad-order train; that it was supposed to arrive before twelve o'clock but did not come in until about two o'clock A. M.; that plaintiff told him at two different times about this train and knew that it was a bad-order train.

J. C Larew the day yard master testified, that there was on file in his office a telegram showing that...