Railway Co. v. Davis

54 Ark. 389 | Ark. | 1891

Hemingway, J.

1. Risks assumed by brakeman —XJ nblocked frogs. Whether the defendant would have promoted the safety of its operatives by substituting upon its road blocked for unblocked frogs, and whether its duty of reasonable care exacted this, are questions that cannot affect the result in this case. The plaintiff charges negligence in the use of unblocked frogs, not because they were badly constructed, out of repair, or exposed operatives to latent dangers, but because a different kind of frog would have been less dangerous to operatives. Unblocked frogs were in universal use on the roads in „this State, including the entire road of the defendant. The injured employee knew, when he entered the defendant’s service, that its frogs were unblocked; and if there was danger in their use, he knew it was an incident to the service he was entering. When a master employs a servant to do a particular work with a particular kind of implementor machine, he agrees that they are sound and fit. for the purpose intended, so far as ordinary care and prudence can discover, but does not agree that they are free from danger in their use. The servant .agrees to use in the service the particular kind of implement or machine; and if under such circumstances harm ■comes to him, it must be ranked among the risks he assumed when he entered the service. Lake Shore R. Co. v. McCormick, 74 Ind., 447; McGinnis v. Canada S. B. Co., 49 Mich., 466; Sweeney v. B. & J. E. Co., 101 N. Y., 520; Diehl v. Lehigh Iron Co., 21 Atl. Rep., 430. Such is the express holding of the courts of Massachusetts, Illinois and Kansas, in cases in which the negligence charged was in the use of unblocked frogs; Chicago R. Co. v. Lonergant 118 Ill., 41; Wood v. Locke, 147 Mass., 604; Rush v. M. P. R. Co., 28 A. & E. R. Cases, 484; and this court so ruled in the case of Davis v. Railway, 53 Ark., 117; see Grand v. Mich. R. Co., 47 N. W. Rep., 837-841.

We think confusion has sometimes crept into cases like this, from the effort to determine them by the rules of contributory negligence. We do not think they necessarily furnish the correct criterion for determination, but that the contract of employment is a necessary element of consideration. It is an elemental principle that an employee, when he-enters into service, agrees to assume all risks ordinarily incident to his employment; and if he is of mature years, experienced in the business undertaken, and knows what instrumentalities are to be used by him, he contracts that he will assume the risks incident to using that class of instrumentality, as well as any other risk incident to the business and if the master uses proper care in providing the kind contemplated, the employee cannot complain, although some other kind would have been less dangerous; his contract hushes his complaint, regardless of the employer’s negligence. Such case is to be distinguished from that of the traveler upon a highway who encounters an obstruction negligently erected by another, which he reasonably believes, he can pass in safety, but is injured in attempting it, as was the case in St. Louis R. Co. v. Box, 52 Ark., 368; for in the latter case the right of recovery is unfettered by the doctrine of assumed risks, and will be defeated only if the negligent act of the traveler contributed to his injury. Whether it can be distinguished from the cases in other States where an employee continued service after an instrumentality fell out of repair and thereby received injury, is a question we' need not consider. See Snow v. Housatonic R. Co., 8 Allen, 441; Patterson v. Pittsburg R. Co., 76 Penn. St., 389; Colorado R. Co. v. Ogden, 3 Col., 500; Lasure v. Graniteville Mfg. Co., 18 S. C., 276. As the deceased took employment contemplating the use of unblocked frogs, no instruction should have been given as to negligence predicated upon that fact, and the court erred in giving the first and third instruction on the prayer of the plaintiff.

Ua®-iK“use dilheld?tIV* Defendant insists that the court erred in giving plaintiff’s fourth instruction, for the reason that there was no evidence to justify it. We think otherwise. The deceased went between two cars to uncouple them; while thus engaged, he was injured. There was evidence that he attempted to draw the coupling-pin while the cars were slowly moving, and that the pin was fast and detained him in this attempt until he reached a frog where his foot was caught and the injury done. It also tended to show that the hole in which the pin rested was too small and held the pin fast, and that this was the reason why it was not drawn before the frog was reached. If this is true, it tended to prove a discoverable structural defect in the drawhead, and was proper for the jury to consider in determining whether the injury was caused by defendant’s negligent failure to furnish safe cars. If there had been no evidence except as to the depression of a drawhead, the instruction would not have been justified, for there was no proof that the defendant knew or could have known of it. It might well have occurred during that trip and existed in spite of all proper care by defendant, and, as the burden of proof was on plaintiff, it would not justify a finding of negligence. St. Louis R. Co. v. Gaines, 46 Ark., 567.

Reversed and remanded for a new trial.