70 Ark. 295 | Ark. | 1902
(after stating the facts.) The appellants contend that, having been employed to brake cars on the Arkansas Central, and knowing that its tracks were not ballasted or filled in between the ties, he must be held to have assumed the risk ordinarily incident to its employment. But the injury did not occur on the Arkansas Central Railroad, but on a switch or spur track of' the Iron Mountain Railway Company, which might reasonably have been supposed to be properly ballasted in its switch yards. The appellee had a right to rely upon this having been done, as it was a duty the master owed his servants. He was obliged to-furnish them a reasonably safe place in which to' exercise their employment. Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333.
The evidence showed that it was the custom of railroads to-have such tracks ballasted; that brakemen do not anticipate that they will be unballasted. The company or receiver was liable for using an unballasted track on another road, if injury occurred by reason thereof. Little Rock & H. S. Ry. Co. v. Cagle, 53 Ark. 347. The law requires a railroad company-to furnish a reasonably safe track inside the switching limits where swfitching is required to be done. Lake Erie & W. R. Co. v. Morrissey, 177 Ill. 376; Illinois Central R. Co. v. Cozby, 174 Ill. 109; Little Rock & Memphis R. Co. v. Moseley, 56 Fed. Rep. 1009; Hollenbeck v. Missouri Pac. R. Co., 38 S. W. 723.
The appellee did not assume the risk of danger arising from plaintiffs failure to perform its duty. This was not in the contract of service. Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333.
The question of plaintiff’s contributory negligence was for the jury, and was left to them by the instructions. We find no-reversible error in the instruction. The damages are not excessive.
The judgment is affirmed.