Woodson v. Prescott & Northwestern Railway Company

• Decision Date: 12 July 1909
• Citation: 121 S.W. 273,91 Ark. 388
• Parties: WOODSON v. PRESCOTT & NORTHWESTERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

121 S.W. 273

91 Ark. 388

WOODSON v. PRESCOTT & NORTHWESTERN RAILWAY COMPANY

Supreme Court of Arkansas

July 12, 1909

Appeal from Nevada Circuit Court; Jacob M. Carter, Judge; reversed.

Judgment reversed and cause remanded for new trial.

J. O A. Bush and Murphy, Coleman & Lewis, for appellant.

1. The first instruction asked by plaintiff should have been given. 67 Ark. 306; 82 Id. 372; 83 Id. 318; 157 U.S. 72; Bailey on Master and Servant, p. 101.

2. The third and fourth instructions given for defendant were erroneous. 77 Ark. 9.

3. The tenth instruction was clearly erroneous.

McRae & Tompkins, Hamby & Haynie, and D. L. McRae, for appellee.

1. The modification of the first instruction given for plaintiff was proper.

2. The burden was on plaintiff to show injury by reason of the alleged defects. These defects were known to the company, or could have been known by the exercise of reasonable diligence, and there was no presumption that the alleged defects caused the injury. 46 Ark. 570; 67 Id. 305; 87 Id. 217; 81 Id. 277; 79 Id. 76; 179 U.S. 663.

3. Under the evidence the tenth instruction was proper. The question whether or not he assumed the risk should have been submitted to the jury.

OPINION

FRAUENTHAL, J.

The plaintiff, Edgar Woodson, was in the employ of the defendant the Prescott & Northwestern Railway Company, as a fireman on one of its engines; and while in that employment he claims that he sustained personal injuries through the negligence of the defendant; and he brought this suit against defendant to recover damages for those injuries. The defendant in its answer denied all allegations of the complaint, and alleged that any injury the plaintiff sustained was caused by his own negligence.

The evidence tended to prove the following facts: The plaintiff had been in the employ of the defendant for about a month as a fireman on one of its engines, and was acting in that capacity at the time of the injury complained of. On November 6, 1907, the train was running in the direction of Prescott, and when it came to a certain switch, known as Arcadia Switch, the engine left the track, and continued some forty or fifty yards, and turned over. The plaintiff at the time was engaged in his duty as fireman in shoveling coal. He was caught by the engine as it turned over, and was severely injured. The blind drive wheels of this engine had become so worn that grooves had been made in them, so that these wheels had flanges on each side. These blind drive wheels were made without any flanges, and all other wheels on the engine had flanges only on the inside of the wheels. From the marks that were made on the ties it appeared that these blind drive wheels, with their flanges on the outside, struck the stop rail at the point where the switch joins the main track, and caused the engine to be derailed. The evidence tended to prove that these grooves had worn into the blind drive wheels to a depth of one-half inch, and that the derailment of the engine was caused by this defect in these wheels. The train was going at the rate of about ten miles an hour when it left the track, and the plaintiff did not attempt to jump from the engine.

The plaintiff requested the court to give the following instruction to the jury: "1. A railroad company owes to its employees, engaged in the running of its trains, the duty of using reasonable and ordinary care to furnish and keep in safe repair safe and suitable engines and other appliances for the carrying on of such operation, and to inspect or cause to be inspected such engines and appliances at all reasonable and necessary times, with the view to keeping the engines in such reasonably safe condition; and if it does not do so, but negligently permits any wheel or wheels of its engines to become so worn as to render the running or operation of such engine dangerous, and by reason thereof its employee is injured, it is liable to him in damages."

The court refused to give the instruction as asked, but modified it by striking therefrom the following: "And to inspect or cause to be inspected such engines and appliances at all reasonable and necessary times with the view to keeping the engines in such reasonably safe condition."

Among other instructions it gave at the request of the defendant the following: "10. You are further told that if, after the plaintiff knew the engine was derailed, he knew he could have escaped in safety, but thought the engine would stop, and, with full knowledge of the facts, decided to remain on the engine and take the risk, instead of trying to escape, he can not recover."

The jury returned a verdict in favor of the defendant; and from the judgment entered thereon the plaintiff prosecutes this appeal.

It is claimed by the defendant that the plaintiff was guilty of contributory negligence by remaining on the engine and by not jumping therefrom. The question presented by the above instruction number 10, given at the request of the defendant is whether as a matter of law under the circumstances of the case the plaintiff was guilty of contributory negligence by remaining on the engine. The evidence tended to prove that the derailment of this engine was caused by defective drive wheels. These wheels had been in use so long that grooves had worn into the wheels to a depth of one-half an inch, so that it made flanges on each side of the wheels, and this caused the engine to leave the track. It was not the duty of the plaintiff to inspect the appliances that were furnished him. He had a right to rely on the assumption that the defendant had exercised due and ordinary care in furnishing him a reasonably safe engine in which to work. There is no evidence to show that the engine left the track through any fault or negligence of the plaintiff. A perilous emergency was thus presented. It is well established that when one is required to act suddenly and in the face of an imminent danger he can not be held to be guilty of contributory negligence because he failed to exercise the best judgment or did not take the safest course. Especially is this true when the peril has been caused by the fault of another. In the case of Jones v. Bryce, 1 Stark. 493, Lord Ellenborough said: "If I place a man in such a situation that he must adopt a perilous...