116 Ark. 461 | Ark. | 1915
Lead Opinion
Appellee recovered damages for an injury sustained by him, which he detailed as follows: He was -employed as a brakeman, and his run extended from Rogers to Fayetteville, -the entire length of appellant’s road, a distance -of 104 miles, and his train was a local freight train, which did the local switching at all stations. He had instructions from the conductor at th-e station of Highfill to set -out -two oars -at Springtown, -and upon the arrival of the train, at the last named station, he proceeded to execute the orders previously given him, and he further testified as follows: “I cut -the oar-s where I should, to-ok out the box car and spotted it, came back to get the flat car, and when getting ready to take out the flat car -the conductor gave -me the signal to couple in the air; I had left the switch unlocked to set -out the flat car, after I took out the box oar and spotted it, so when he gave me the signal I went over -the flat car to get to the switch to lock it, -and by -that time the train was in speed five or six miles an hour, and I had to run to catch it; I stumbled and fell -and the train ran over my foot; 1 left the switch unlocked to go back and put this other car in, as he had instructed me to set out two cars; he instructed me to set out the box ear first and spot it and to set out the flat oar in the clear; when I got over the flat oar to get to the switch, to lock it, I couldn’t go west on account of the cattle guard; the cattle guard was in bad condition; was just one step to the switch, so that throwed me to go east; I thought it was the safest to go on, so I went up there, and as I got in motion with the train'I hit a rock, missed my hand hold, stumbled and fell and the train run over my foot.” The rock over which appellee stumbled and fell was described as being about the size of a man’s head, and had been lying on the track for some days. It was shown that by the rules of appellant any employee would be discharged who left a switch unlocked.
It is said that the concurrence of the presence of the rock on the track and the premature signaling of the train to start, in view of the conductor’s change in the switching directions without advising appellee of that change, caused the injury.
A number of instructions were given at the trial at the request of both appellant and appellee, and it is conceded that the instructions are conflicting, in that the court submitted questions of assumed risk and contributory negligence, and by instruction numbered 5, given at the request of appellee, eliminated those questions from the consideration of the jury. It is urged, however, that the instruction given at the request of appellant was erroneous in submitting those questions to the jury, and that appellant can not complain because the jury failed to follow instructions which should not have been given. Instruction numbered 5 was as follows:
“The court instructs the jury that if you find, from a preponderance of the evidence, that the plaintiff sustained the injuries alleged in the complaint, by reason of the defendant’s conductor negligently causing the train on which plaintiff was employed as brakeman to move away from the station at Spring-town at a rapid rate of speed, while the plaintiff was on the opposite side of said train for the purpose of looking the switch and in the performance of the duties required of him, then you should find for the plaintiff.”
We will not set out the other instructions given and refused, nor the various exceptions to the action of the court in giving and refusing instructions, as our discussion of this fifth instruction indicates o'nr view of the law of this case.
An act numbered 88 was passed ,by the General Assembly and approved March 8, 1911. See page 55, of the Public Acts of 1911. This act was entitled, “An Act regulating liability of employers for injuries to employees,” and by its provisions undertook to confer a cause of action upon any employee injured as the result of the existence, or concurrence, of .any of those things there made the basis of a cause of action. Section 3 of this act is as follows:
“In all rights of action hereafter arising within or by virtue of this act or any provision of the same for personal injury to an employee, or where such an injury has resulted in his death, the fact that an employee may have been guilty of contributory negligence -shall not bar a recovery; provided, that the negligence of such employee was of a lesser degree than the negligence of such common carrier, its -officers, agents or -employees; provided, further, that no .such employee who may be injured or billed shall be held t-o have been guilty of contributory negligence in any case where the violation by such common carrier, its officials, agents or employees, -of any law enacted for the safety of -employees or persons contributed to the injury or death -of -such employee, and such employee -shall not be -held to have assumed the risk of ibis employment in any action arising -out of any of the provisions of this act. ’ ’
Section 1 of the act recites the “rights of action” referred to in section 3, but working an employee over time is not there named as one of these “rights' of action. ’ ’ Where there is a right of .action under section 1, that action can not'be defeated by the defense of assumption of risk and is not, necessarily, defeated because the servant may have been guilty of contributory negligence.
An injured employee might have a cause of action which was not created .by section .1 of the -above act, and his right to recover damages could not be defeated by the defense of contributory negligence where the employee had been worked overtime. In such a -ease the jury would not inquire whether the master’s negligence was greater than that of the servant, nor, indeed, would any inquiry be made about the -servant’s negligence, for that would be immaterial. The defense of assumption of risk would remain, but not that of contributory negligence.
Most of the legislation on'this subject is modeled after the Federal Employer’s Liability Act of April 22, 1908, and among the 'States which have enacted legislation patterned after that act is the State of Michigan, and, while onr not is not a copy of the Michigan act, it is so similar to the one of that State as to suggest that it served as a model for our statute. Still, changes of a nature so material were made that we can not apply the rule that, in adopting this statute from Michigan, we intended also to adopt the construction given the statute by the courts of that State.
Section 1, of Act No. 88, reads as follows:
“That every common carrier by railroad in this State, shall be liable for all damages to 'any person suffering injury while he is employed by such carrier, or, in case of the death of such employee, to his or her personal or legal representative, for the benefit of the surviving widow or husband and children of such employee; if none, then to such employee’s parents; if none, then to the next of kin of such employee, for such injury or death resulting in whole or in part for the negligence of any of the officers, agents, or employees of such carrier, or by reason of any insufficiency of clearance of obstruction, of strength of roadbed and tracks or structures, or machinery and equipment, of lights and signals in switching and terminal yards, or rules and regulations and of number of employees to perform the particular duties with safety to themselves and their co-employees, or of any other insufficiency; or by reason of any defect, which defect is due to its negligence in its cars, engines, motors, appliances, machinery, track roadbed, boats, works, wharves or other equipment.”
This legislation was first enacted in jurisdictions where the common-law rule in reference to fellow-servants was in force, and in the case of Seaboard Air Line Railway v. Horton, 233 U. S. 492, the court construed the phrase, “resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier.” This quotation appears in the Federal Employers’ Liability Act, and it will be observed that our act copies that phrase. Interpreting the section of the Federal statute in which the above phrase appears the Supreme Court of the United States in the above cited case said:
‘ ‘ This clause has two branches; the one covering the negligence of any of the officers, agents, or employees oif the carrier, which has the effect of abolishing in this class of cases the common-law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff; * * ,
There was the same necessity in some other jurisdictions for language of this .character to abolish the common-law rule in regard to fellow-servants. It is true there was no necessity in this State, as the common-law rule on this subject had been changed by previous legislation. While there was no necessity under the law of this State for this phrase to change the common-law rule in regard to fellow servants, yet ¡the language above quoted creates a right of action under this Act No. 88, where the servant’s injury was caused by the negligence of a fellow servant.
We tMhk the presence of the rock is a fact to be considered by the jury in determining the question of appellant’s negligence and to be given such weight, if any, as it should have in the determination of that question. But we do not agree with appellee’s contention that the mere presence of the rock itself constituted a right of action under section 1 of Act 88. Appellee’s view is that the presence of the rock constituted an “insufficiency of clearance óf obstructions.” 'The phrase quoted evidently relates to obstructions of a permanent character. TMs view is sustained by the opirnon of the Supreme 'Court ,of Georgia, construing a similar statute in that State, in the case of Hubbard v. Central of Georgia Railway, 63 S. E. 19, 19 L. R. A. (N. S.) 738.
The fifth instruction set out -above does not conform to the views here expressed, and the judgment of the court below is, therefore, reversed and the cause will be remanded for -a new trial.
Dissenting Opinion
(dissenting). I think the court is wrong in holding that, in a suit 'based on the Employers’ -Liability Act of this State (approved March 8, 1911), where the injury to the servant occurred during a period of time he was being overworked in violation of the provisions of Kirby’s Digest, § 6654, it is necessary, in order to eliminate the defense of contributory negligence, to show that the fact of the seryant /being worked overtime contributed to the injury. The court has not, I think, correctly 'construed the last proviso of section 3 of the Employers’ Liability Act. That provision obviously refers to a violation by the employer of some affirmative duty 'imposed by statute for the safety of 'employees, and it entirely abolishes, the doctrine of contributory negligence in cases where the injury is caused by a violation by the carrier of such affirmative statutory duty. It has no reference to the statute which forbids the working overtime of railroad employees, for that statute itself declares that the defense of contributory negligince shall not be interposed in' an action brought to recover damages resulting from an injury which occurs to an employee while detained in service more than the prescribed number of hours.
The act of 1911 was passed in the light of existing statutes 'and repealed them only to the extent of repugnancy. There is no repugnancy whatever between the two statutes and they may be read together in perfect harmony. It is a mistake, in my judgment, to undertake to subordinate the provisions of the statute concerning working employees overtime, to the new statute, and it defeats the wholesome effect of both, for the purpose of the lawmakers in the first statute was, in cases where a. railroad employee is injured while being worked overtime, to .shut off all inquiry as to contributory negligence on his part, and there is no indication of an intention on the part of the Legislature in passing the act of 1911, to change that rule in cases brought under that act. The view that the court now takes completely nullifies the old statute about working employees overtime, so far as concerns any application of it to a suit under the Employers ’ Liability Act, for it is impossible to prove’ that working overtime caused the injury. That is the reason why the Legislature passed the first statute, because they recognized the fact that an employee who had worked overtime was not in a condition to do so, and if he was injured there should he no inquiry as to the fact of his being guilty of negligence.
My conclusion; therefore, is that there was no prejudicial error in giving instruction No. 5, for it is undisputed that ’appellant was, when he was injured, being worked overtime contrary to the provisions of section 6654, and the question of contributory negligence was thus entirely eliminated from the case.