St. Louis Southwestern Ry. Co. v. Lewis

• Decision Date: 12 July 1909
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. LEWIS.
• Court: Arkansas Supreme Court

121 S.W. 268

ST. LOUIS SOUTHWESTERN RY. CO. v. LEWIS.

Supreme Court of Arkansas.

July 12, 1909.

Appeal from Circuit Court, Jefferson County; Antonio B. Grace, Judge.

Action by M. R. Lewis against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sam H. West and Bridges, Wooldridge & Gantt, for appellant. W. F. Coleman and T. M. Hooker, for appellee.

BATTLE, J.

M. R. Lewis sued the St. Louis Southwestern Railway Company for damages for an injury caused by its failure to properly inspect its cars. He alleged: That he was on the 27th of February, 1907, in the employment of the defendant as conductor on one of its gravel trains, and while so engaged sustained painful and permanent injuries as a result of the gross negligence of the defendant; that in the discharge of his duties as such conductor he caused said trains to be moved to the Bearden gravel pit on its line of railway, for the purpose of loading the same with gravel for use on defendant's railway, and caused it to be stopped at the place where it was the custom of the railroad company to inspect its cars and to repair any and all defects and injuries that any of them may have received, and after it had been stopped sufficiently long for such purpose caused it to be moved to a steam shovel there located to be thereby loaded with gravel, and when it stopped placed his foot upon the stirrup or step of one of the cars of the train for the purpose of alighting, and it, being defective, as he did so, swung around from one end, and threw him to the ground, and thereby inflicted hernia in one of his sides, a painful and permanent injury.

He further alleged: "That said stirrup on said car was defective; that same was known to the defendant, or could have been known to it by the exercise of ordinary care; but that defendant, through its agents and employés, did not exercise ordinary care in the inspection and repair of its said cars but was guilty of gross negligence, thereby causing the injury to the plaintiff as above." And charged: "That defendant has been guilty of negligence in not providing safe appliances for its said cars, and in the use and employ of defective machinery and appliances, to the plaintiff's great injury." And stated: "That, by the wrongful and negligent acts of the defendant, plaintiff has suffered great bodily pain and mental anguish and suffered permanent injury; that he has suffered such injury as renders him unable to perform his usual labors and incapacitates him for performing manual labor of any kind; and that he has been damaged thereby in the sum of $20,000" — for which he asked for judgment.

The defendant admitted that plaintiff was in its employment, and denies all other material allegations, and pleaded contributory negligence and assumed risks by plaintiff as defenses.

A trial of the issues before a jury followed, in which a verdict was returned in favor of the plaintiff for $1,500, and the defendant appealed.

Evidence was adduced in the trial tending to prove the following facts: On the 27th day of February, 1907, plaintiff, Lewis, was a conductor in the employment of the defendant, St. Louis Southwestern Railway Company, being in charge of the moving of the trains of the railway company and the loading of its cars with gravel at Bearden gravel pit. He had caused a line of cars to be moved down to the steam shovel at that place for loading, and was stepping from one of the cars to a step suspended under the sill on the side of the car. The step gave way, and he fell to the ground, a distance of about two feet, which caused a hernia in his left side and much pain and suffering. This step "was in the nature of a stirrup being on the ends of bolts coming down through the sill." It was a flat piece of iron bent in the shape of the letter U. A bolt passed through each end and was secured by nuts. After appellee had fallen, he discovered that one of these nuts had come off, leaving one end of the step unfastened. When he put his weight on the step, the end slipped off the bolt, and he fell. He could not have discovered the defect in the step, before falling, without getting down on the ground and looking up from beneath the car.

Inspectors were sent to and kept at Bearden gravel pit to inspect the cars of the appellant arriving at that place. They made all necessary repairs they could that this inspection disclosed, and if they could not be made there the car was sent to the shops at Pine Bluff, Ark. They made report of cars inspected to a Mr. Adams, "the superintendent of motive power at the Pine Bluff shops." C. E. Yowell was foreman of the freight car repairs of appellant in its shops at Pine Bluff. The inspectors at Bearden gravel pit were employed by him, and he sent them there as car repairers and inspectors. They inspected the car with the defective step a short time before and on the day appellee was injured. They failed to discover the defect, and no good reason is given for the failure. The car was moved a very short distance after the inspection to where appellee fell.

T. S. Stinson was train master of the appellant, and in February, 1907, was in charge of the Bearden gravel pit, together with the gravel trains of the appellant "and the operations of the grading of its road." So it appears that appellee and the inspectors were in different departments of service.

The court instructed the jury, in part, as follows:

Instruction 1:...