104 S.W.2d 1070 | Ark. | 1937
This case was originally instituted to recover damages for personal injuries sustained by appellee while he was in the employ of the appellants. *1129 Appellee alleged that at the time of the accident he was engaged in interstate commerce in that he was at work upon a track used in connection with a coal chute which furnished coal for the operation of interstate trains upon appellants' line of railroad; that appellants were engaged in interstate commerce in that they were operating interstate trains over said railroad track which were supplied with coal from said chute, the coal being necessary for the operation of said trains.
A petition for removal of the cause to the federal court with proper bond was filed. The right to removal alleged was that the appellants were residents of the state of Missouri and appellee of the state of Arkansas; that, therefore, there was a diversity of citizenship existing between the parties and that the amount in controversy exceeded the sum of $3,000. It was further alleged in said petition that the allegations in appellee's complaint relating to his employment in interstate commerce were untrue and fraudulently made to state a case within the Federal Employers' Liability Act and to defeat the federal court of jurisdiction, and under the allegations, on motion made in the federal court, the case was remanded to the state court. The necessary effect of this order was to find (1) that the allegations of the complaint were not fraudulently made, and (2) that the facts alleged constituted a cause of action within the purview of the Federal Employers' Liability Act.
There was a trial of the cause on remand in which the appellants contended that appellee, at the time of his injury, was not engaged in interstate commerce within the meaning of the act aforesaid; also, that the undisputed testimony failed to establish any negligence upon the part of the appellants which occasioned the injury for which suits for damages was brought. On these grounds the appellants requested an instructed verdict which was overruled.
On appeal to this court, it was contended that the trial court erred in refusing to direct a verdict in favor of the appellants. The argument was made that appellants were entitled to a verdict because of failure of the *1130
proof to establish appellee's employment in interstate commerce and, as a further and additional ground, that there was no negligence shown. This court reversed and remanded the judgment on other grounds than those raised in the request for a directed verdict, but the alleged error of the trial court in refusing to direct a verdict was overruled, and, in disposing of that matter, it was stated: "The majority are of the opinion that the evidence was sufficient to go to the jury on the question of negligence since appellee was acting under the immediate directions of the foreman in the manner of doing the work and that the injury received, or some injury, might reasonably have been foreseen by the exercise of ordinary care as to the manner of doing the work by the foreman. * * * The question is also argued as to whether appellee was engaged in interstate commerce within the meaning of the Federal Employers' Liability Act. We think the evidence sufficient to take that question to the jury. Other questions are argued which may not arise on another trial, and we do not discuss them." Missouri Pacific Rd. Co. v. Hunnicutt,
The appellants admit the principle that issues decided on former appeal become the law of the case and, whether right or wrong, will not be disturbed on subsequent appeal, but cite an exception to this rule, i. e., that, where the testimony on the second appeal is substantially different, the former findings of fact will not be binding. St. L. I. M. S. Ry. Co. v. York,
The effect of the additional evidence in no particular disputes the evidence formerly introduced, but tends to make certain the nature of the object which struck appellee in the eye and which, on the state of the evidence at the former trial, was conjectural. Therefore, the conclusion reached by this court on the first appeal remains *1132
the law of the case as to the sufficiency of the evidence to warrant the verdict of the jury on the question of negligence. The only new issue to be injected by the additional testimony is that of assumed risk. Appellants contend for the rule that where the conditions of the work are constantly changing so as to increase or diminish its safety, it is the servant's duty to make the working place safe and no duty in that regard rests upon the master. It is contended that this is the principle announced in Grayson-McLeod Lbr. Co. v. Carter,
At the request of the appellants the trial court correctly instructed the jury on the doctrine of assumed risk, both as to the ordinary and usual risks of employment and the extraordinary risks which were open and obvious to the servant. It is contended that under the testimony in this case the danger from the rail spike was open and obvious to that degree that the trial court should have so declared as a matter of law. Appellant has evidently overlooked that part of the testimony of Morse to the effect that the rail spike was in a manner concealed so as not to be observable when appellee first began the work he was directed to perform by the foreman and that when witness first saw the spike roll into view he had no opportunity to warn appellee of its presence and appellee had no time to check his blow and probably did not see the spike. This evidence clearly made it a question for the jury as to whether or not the danger was so open and obvious as to be plainly discoverable by appellee. If it was not of this character, he could not be deemed as a matter of law to have assumed the risk of a danger which he might not have known. This is especially true as appellee, at the time, was acting under the direct orders and supervision of his foreman. The cases *1133
cited by appellant sustain this conclusion. Among these are Murch Bros. v. Hays,
On the question as to whether or not appellee was engaged in interstate commerce at the time of the accident within the meaning of the Federal Employers' Liability Act, supra, the evidence on both the first and second trials tended to establish the allegations of the complaint. The coal chute was a structure elevated above the main railway tracks consisting of a track connecting with the main line and ascending an incline for perhaps 200 feet and then leveling out for the remainder of the distance of the track. Along the level part of the track were stationed receptacles into which coal might be dumped from cars brought up from below. These receptacles, or "pockets," were so constructed that by the operation of a mechanical device coal could be dumped from them into the tenders of locomotives. The coal chute had not been used for some twelve or eighteen months prior to the time of the beginning of its repair in question, but its use became again necessary and appellee and his fellow-workman had been engaged in its repair for several days before the date of the injury to appellee. These repairs had not been fully completed, but had progressed to a degree sufficient to enable coal cars to use it and at least one locomotive had been serviced from the chute before the injury. The trains obtaining coal from this chute were engaged in both interstate and intrastate transportation.
In the case of Erie Railroad Co. v. Collins,
In the Shanks case the railroad company was engaged in both interstate and intrastate transportation and was conducting an extensive machine shop for repairing parts of locomotives used in such transportation. Shanks was employed in the shop and on the day of his injury was engaged solely in taking down an overhead countershaft and putting it into a new location. By this shaft, power was communicated to some of the machinery used in the repair work. His work, however, usually consisted of repairing certain parts of locomotives. The court held that the nature of his employment was to be determined as of the time the injury occurred and that at such time he was not engaged in interstate commerce within the meaning of the Federal Employers' Liability Act.
In the Harrington case, it was held that an employee did not come within the meaning of the act, supra, when *1135
engaged in removing coal from storage tracks to coal chutes. In thus holding, the court called attention to the Shanks case, supra, and Delaware, etc., Ry. Co. v. Yurkonis,
In the Bolle case, the employee at the time of injury was engaged in firing a stationary engine to generate steam to be used for heating a depot and other rooms devoted to general railroad purposes. This steam was used also for heating suburban coaches while standing in the yards. Some of these coaches, taken off of interstate trains, were heated, when necessary, before being taken up by other interstate trains. At times steam was used to prevent freezing of a turntable used for turning engines employed in both kinds of traffic. The court said: "The sole object of the movement of the substitute engine was to procure a supply of coal for the purpose of generating steam. Its movement was in no way related to the contemplated employment of the other three locomotives in interstate transportation; and its use differed in no way from the use of the stationary engine when that was available."
It seems that a distinction may be drawn between the cases above cited and the instant case. Here, the appellee was engaged in the repair of that part of a railroad track which is just as much a part of the railroad and as necessary for its proper operation as were passing tracks or bridges across streams on which the tracks were laid. In the case of Kansas C. S. Ry. Co. v. Leinen,
In Pederson v. Del., etc., Ry. Co.,
In Philadelphia, etc., Ry. Co. v. Smith,
But whatever may be the state of the law, the question is concluded in the instant case by our holding on the former appeal. On the first trial the evidence was to the effect that the coal chute was used for the purpose of supplying coal to locomotives engaged in both interstate .and intrastate commerce and while the chute was not fully repaired, it was to the extent that it was being used at the time of appellee's injury; and, on a day or two previous, coal had been supplied from it to fuel a train engaged in interstate commerce. On the second trial the evidence went more into detail as to the nature *1137 of the work in which appellee was engaged and the purpose for which the chute was being used and the purpose of its future use. In all essential particulars, however, the evidence was substantially the same on both trials and our conclusion on the first appeal becomes the law of this. Therefore, we must now hold that the evidence was sufficient to establish employment within the meaning of the federal act, supra.
Before presenting to the jury the written instructions, the trial court gave oral instructions, with no objection being interposed at that time, on the burden of proof and the definition of interstate commerce. After the oral instructions were given, the instructions given at the request of the appellee were read to the jury and those given at the request of appellants. After this, counsel for appellants objected to the action of the court in the giving of oral instructions and requested that same be reduced to writing. The court overruled the objections on the ground that they had not been interposed in apt time, but directed the reporter to transcribe the oral instructions and to file them with the written instructions. Thereupon the appellants' counsel objected specifically to the definition of interstate commerce contained in the oral instruction.
We can understand the reluctance of the trial court to delay the trial for the purpose of reducing to writing oral instructions already given when the request is made after the written instructions are given. Notwithstanding this; it is the better practice that the request be complied with although resulting in delay, but apt objection should be made and we think that the direction to the reporter to write out the oral instructions was sufficient to remove any prejudice especially as the oral instructions were substantially covered by the written ones. The definition of interstate commerce given by the court in its oral instruction was perhaps not entirely accurate, but all doubt on this question was removed by a written instruction given at the request of appellants both as to the burden of proof and the definition of employment in interstate; commerce, as follows: *1138
"You are instructed that the burden is upon the plaintiff to prove by a greater weight of the evidence that at the time he received his injury he was employed in interstate commerce, which means that he was engaged in doing some work in furtherance of interstate transportation or so closely connected therewith as to become a part of interstate transportation. And unless the plaintiff has proved this by a preponderance of the testimony, then your verdict will be for the defendant." National Lbr. Co. v. Snell,
It is contended that the trial court erred in directing appellee's counsel to read to the jury an instruction given at appellee's request and directing appellants' counsel to read the instructions given at their request. This contention is grounded upon 23, of art. 7, of the Constitution, providing that judges shall declare the law to the jury, and 1292 of C. M. Digest providing that when the evidence is concluded either party may request instructions to the jury on points of law which shall be given or refused by the court. In this particular, we think the better practice is for the trial court to read the instructions to the jury without any mention being made as to the instructions being requested by either of the litigants. But, in this as in the matter of the oral instructions given, we think no prejudice resulted. The court stated to the jury that the written instructions read and the oral instructions given were the instructions of the court and that the jury was bound to, consider the same as the law of the case.
It is lastly insisted that the verdict returned by the jury is excessive. The verdict was for $13,000. The blow from the rail spike completely burst appellee's eyeball, necessitating its removal, and cut and bruised his *1139 face. The operation was performed twenty days after the injury during which time it was necessary for the appellee to take from three to five hypodermics a day to allay his suffering, and after that he continued to suffer and the loss of one eye affected the sight of the other. He stated that the effect of his injury was to prevent him from doing any work of the nature of that for which he had been trained, and there is no evidence to the contrary. At the time of his injury, appellee was fifty-one years of age, a strong and robust man, earning $3.60 a day, with a life expectancy of twenty years. We do not think the amount of the verdict is such as to justify the presumption that it was the result of passion or prejudice and we do not feel that we would be justified in reducing the amount.
The judgment of the trial court will, therefore, be affirmed.