Taylor v. Evans

Citation145 S.W. 564,102 Ark. 640
PartiesTAYLOR v. EVANS
Decision Date18 March 1912
CourtArkansas Supreme Court

Appeal from Yell Circuit Court, Dardanelle District; Hugh Basham Judge; affirmed.

Judgment affirmed.

G. O Patterson and Sellers & Sellers, for appellant.

1. The original complaint was admissible for the purpose of showing an admission, the issue being sharply drawn as to whether appellee was hurt in trying to get on the car, as alleged in the original complaint, or after he had got to his place by being jerked off. The court erred in excluding the original complaint, and in refusing to allow plaintiff to be cross examined touching its allegations. 21 P. 359; 20 P. 473; 8 S.W. 549; 1 Enc. of Ev. 438.

2. Instruction 5, on the duty of the servant was, unauthorized. While engaged in his duty and obeying orders, he assumes the risks incident thereto. And plaintiff's minority, no proof being made of deficiency in intellect or experience does not affect the case. 134 S.W. 638; White on Pers. Injuries, § 301.

3. Instruction 6 on the duty of the defendant was abstract, because no issue was raised as to the place or appliances furnished, and no attempts made to prove any cause of action except the pulling forward of the train by the engineer. Instructions must be based on evidence. 89 Ark. 24; Id. 279; 88 Ark. 20; Id. 594; Id. 172; Id. 231; Id. 454; etc. They must also be based upon the issues. 85 Ark. 322; 132 S.W. 998; Id. 1000; 82 Ark. 499; 90 Ark. 284; 134 S.W. 202; 3 Brickwood's Sackett on Instructions, § 4032; 61 Ill.App. 464; 133 S.W. 499; 133 S.W. 819; Id. 816; 63 Ark. 65; 89 Ark. 581; 87 Ark. 190; 80 Ark. 68; 112 S.W. 30; 8 L. R. A. 765; 148 Ill.App. 158.

4. Instruction 8, given at plaintiff's request, is plainly erroneous. It relieves plaintiff of all duty to care for his own safety, eliminates the law of contributory negligence, permits recovery without proof of negligence on the part of appellant, and is abstract in that there was no claim in the amended complaint, nor any proof, that plaintiff was hurt by a failure to check up. 91 Ark. 102; 63 Ark 65; 76 Ark. 436; 77 Ark. 458; 78 Ark. 100; 80 Ark. 261; 21 Am. & Eng. Enc. of L. 498; 131 S.W. 945; 62 Ark. 164; Id. 235; 65 Ark. 429; 77 Ark. 398; 80 Ark. 5; 127 S.W. 715; 49 S.W. 323, 325; 31 S.W. 885; 40 S.W. 386; 130 S.W. 709; 31 S.W. 885; 40 Ark. 322.

5. The court's instruction on the measure of damages allows a recovery for medical attention and medicine without proof that he had expended any money for these purposes. 136 S.W. 267. It allows a recovery for loss of time or wages, without proof, he being a minor, that his earnings were his own. 11 Am. & Eng. R. Cas. (N. S.) 291; 66 Tex. 225; 89 Wis. 38; 88 Ill.App. 375. And it is particularly erroneous in allowing a recovery for pain and suffering plaintiff is liable to suffer. 3 Brickwood's Sackett on Instructions, § 3573, note; Id. § 3575, note; 80 S.W. 282; 51 Am. St. Rep. 917; 120 N.W. 306; 46 Am. St. Rep. 854; 71 S.W. 905; 121 Ill.App. 334; 104 S.W. 709; 9 Am. Cases, 1222, 72 Neb. 16; 9 Am. Cases, 1050, 75 S.C. 102; 158 N.Y. 254; 53 N.E. 22; 73 Wis. 147.

Brooks, Hays & Martin, Paul McKennon and J. T. Bullock, for appellee.

1. The court properly excluded the original complaint from the evidence because it was shown that appellee knew nothing about its contents.

2. The instructions were more favorable to appellant than he had the right to expect or the law warranted. This is especially true of instruction 3, wherein the court erroneously charged the jury that plaintiff could not recover if his injury was the result of the engineer's negligence, he being a fellow-servant. Acts 1907; 90 Ark. 543.

3. The question of contributory negligence was for the jury, and was fully and fairly submitted to them under proper instructions. As to the assumption of risk, the servant has the right to rely on the presumption that the master has performed his duty and will not expose him to unnecessary dangers or extraordinary risks. 95 Ark. 291, 295, and authorities cited.

MCCULLOCH, C. J. KIRBY, J., dissents.

OPINION

MCCULLOCH, C. J.

The plaintiff, Willard Evans, sues the defendant, W. H. Taylor, who is his employer, to recover damages on account of personal injuries received while in the latter's service. The defendant was operating a coal mine, and plaintiff was working for him at the mine. Plaintiff was about nineteen years of age at the time, and as cars of coal were brought out of the slope of the mine, by means of a locomotive engine, to the tipple, where the coal was broken up, it was his duty to take charge of the cars, and, together with the man working with him, to push them into the cage or elevator, to be carried up to the coal breaker. His work was called "caging," and he was called a "cager." A short distance from the tipple there was a switch, where cars of rock brought up in the coal train were cut out of the train and run back upon a sidetrack to be unloaded. Plaintiff alleges, and his evidence tends to show, that it was also his duty to uncouple the rock cars at the switch. This was done, according to his testimony, in the following manner: When there were cars of rock in the train, the engineer would sound four blasts of the whistle, to notify the cager, and slow up for the latter to board the car. The rock cars would be at the end of the train, and, as soon as they passed the switch going up grade, plaintiff would board the front rock car and stand on the bumper, put his foot on the chain which served as a coupler, and press it down and, as slack was given by the engineer. he would draw the coupling pin thus disconnecting the car, the speed of the train being then increased on his signal and the train continuing forward and the rock car running back down grade on the side track. Plaintiff worked under the direction of the "top boss," who had instructed him to do the work in that manner, and on the day of the injury the boss had sent him to do that work. In his original complaint, he alleged that, on the occasion of his injury, he was engaged in that work, and that the engineer gave the signal, and he took the usual position to board the car for the purpose of uncoupling it, and that while he was attempting to board it the engineer failed to slow up at the usual place, and that by reason thereof he was thrown from the car and injured. Subsequently he amended his complaint so as to allege that, after he had boarded the car and had taken his accustomed place for the purpose of uncoupling it, and before he signalled the engineer, the latter, without looking back for the signal, suddenly increased the speed, thus causing him to be thrown from the car.

Negligence of defendant is charged in the following particulars: "That it was negligence on the part of the defendant's engineer to fail to look back from his place and see whether or not said rock cars were uncoupled just before increasing the speed of his engine as heretofore stated; that it was negligence in said engineer to so suddenly increase the speed of said engine without knowing whether or not said cars had been uncoupled; that said engineer negligently failed to slow up the speed of said engine to enable plaintiff to uncouple said cars; that the superintendant of said mines negligently employed and placed in charge of said engine the man who was in charge at the time of plaintiff's injuries, and negligently failed to give him proper instructions concerning the uncoupling of cars of rock; that he negligently failed to instruct said engineer to slow up the speed of said engine for the purpose of uncoupling rock cars; that he negligently directed said engineer not to stop or slow up for the purpose of uncoupling rock cars, and negligently failed to inform plaintiff of this fact."

Defendant denied, in his answer, that it was a part of plaintiff's duty to uncouple rock cars, or that he was instructed to do that work, and denied that plaintiff was engaged in that work when he was injured. He denied each charge of negligence, and alleged that plaintiff was injured by reason of his own negligence in getting on the cars, where he had no right to be, and in failing to exercise proper care for his own safety.

The court, by specific instructions, took away from the jury the question of negligence of the engineer and negligence of the superintendent in employing an incompetent engineer.

Plaintiff's testimony tends to show that he was directed to uncouple the rock cars in the manner before stated; that he had boarded the car, for the purpose of uncoupling it, when the engineer, without looking back or waiting for the signal, and without giving slack, so that the coupling pin could be drawn, suddenly increased the speed, thus causing plaintiff to be thrown from the car and severely injured.

The testimony adduced by defendant contradicted plaintiff's contention, and tended to show that it was not his duty to uncouple the rock cars, but that when injured he was attempting to board the cars for the purpose of riding to the tipple.

The jury returned a verdict in plaintiff's favor, assessing damages in the sum of $ 1,990, and judgment was rendered accordingly, from which defendant appealed.

It is in the first place, insisted that the evidence is not sufficient to sustain a finding that defendant was guilty of negligence in any respect. If, as plaintiff stated, he was instructed to uncouple the cars in the manner indicated, and it was the custom to do it in that way, defendant owed him the duty to give proper instructions to the engineer to observe the signals and take proper precautions to protect him while performing the work. The engineer, who had been at work on the engine only two or three days, testified that he had had no instructions to slow up in order to let any...

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