51 Ark. 467 | Ark. | 1888
In attempting to couple cars on the yard of appellant, at Texarkana, the appellee’s hand was seriously injured. He sued appellant for damages. Defendant denied negligence on its part and alleged that negligence on the part of plaintiff caused the injury.
The evidence disclosed the following facts: That Rice for twelve years prior to the date of injury had been in the employ of railroads as brakeman and yard foreman. Coupling cars was one of his duties. At the time of the injury he was night yard foreman and went to the yard about S o’clock p. m. The day yard foreman informed him that a car marked “1130 Way,” was to go out to Texas next morning; this car had just come in. About 7:30 o’clock that evening, Rice got some cars from another track and proceeded to couple them to the car ”1130 Way.” He went between the standing and the approaching cars and noticed the position of the draw-heads of both; that of the standing car (1130) was one and a half or two inches lower than it should have been. He tried to take the link from the draw-head of the standing car, but found it fast. He then-took the link from the draw-head of the approaching car. He says he saw that he could not enter the link into the draw-head of the approaching car with the play it had without straining the link. He thought that by using a little extra force, he could raise the link and make the coupling. The link used was a straight one. He did not use a crooked link because he thought he could make the coupling with the link fastened in the .standing car. The weight of the draw-head is about two hundred pounds. He tried to lift up the link fastened in the depressed draw-head, and his hand was caught and injured. It is customary to have link in moving car; it is considered safer. The cause of the depression of the draw-head of the standing car was the depression of the carrying iron. It is a common thing to make couplings of cars of uneven draw-heads. The railroad company issued to employes, and to plaintiff among others, a time card with its rules and regulations printed on the back. Of these printed regulations, Rule 23 is as follows: “Great care must be used in coupling and uncoupling ■cars. Do not go between the cars unless they are moving at a slow and safe speed. Nor attempt to make any coupling unless the draw-bars and other appliances are known to be in good order. ’ ’ That the published rules of the company do not require employes to make couplings between cars where one draw-head is lower than another, with straight links or when the draw-heads are defective. It was the business of the plaintiff, Rice, as yard foreman, to couple and uncouple cars, make up outgoing trains, and to move cars marked “B. O.” (bad order) to the repair tracks. As at this yard the railroad company had a night and a day foreman, so it had its night and day inspector. Plaintiff did not know that the car “1130 Way” had been inspected, but says: ''/ stippose this car was inspected; they always areIt was the duty of the yard inspector to inspect all cars immediately on arrival at the yard. If he finds a trifling defect it is his duty to repair it; if a serious one he marks it “B. O.,” and the yard foreman then moves the injured car to the repair tracks. He carries a wire upon which nuts of all sizes are strung. The yard master had supervision and control of the whole' yard and those employed therein. The distance between the point to which a coupling link may be raised and that to which it may be depressed is six or seven inches.
The court, among other instructions, gave to the jury the following : ‘ ‘The jury are instructed that the duty which defendant owed to its employes, to exercise ordinary care and prudence in furnishing them safe appliances with which to perform the service intrusted to them, and to keep said appliances in good repair, as explained in the above instruction, cannot be delegated to an agent or servant of defendant so as to relieve defendant from responsibility. The defendant may not be able to perform this duty in person, but he must see that some one discharges it faithfully for him. He cannot shirk the responsibility. The law casts upon him certain duties to perform, and if he deputes them to another, the latter, as to these duties is not a fellow-servant with the other employes, but stands in the master’s place, and his negligence is the negligence of the master. It is not material what the rank of the servant or agent is, if he is deputed to perform a duty which the employer owes to his employes, the employer is deemed to be present and is responsible for the manner in which it is performed. So in this case, if the jury find from the evidence that the plaintiff, while in the usual course of his employment as yard foreman, as is alleged in the complaint, and without negligence on his part, was injured while coupling cars on the defendant’s road, or in the yards of the defendant in Texarkana, Ark., by reason of a defective draw-head or other defective appliances on one of such cars, and such injury was caused by the negligence of a servant of the defendant, whose duty it was to inspect said car and the draw-heads attached thereto, and to mark such cars as defective or unsafe, and in certain instances to repair such defects, and the injury was caused by a defect in such car or its appliances which, under the rules and regulations of defendant, it was the duty of said servants to have repaired, then the jury are instructed that the negligence of such servants was the negligence of defendant, and their verdict.may be for the plaintiff; unless they further find that such servant and plaintiff were at the time of such accident fellow-servants of defendant engaged in the same common employment, or that plaintiff was guilty of contributory negligence which was the proximate cause of the injury.”
The defendant asked the following instruction, which was refused : ‘ ‘ If the jury find from the evidence that the said car upon which the draw-head was, by which the plaintiff claims to have been injured, was inspected, or should have been inspected, at Texarkana before the plaintiff attempted to couple the same, and that through the negligence of said car inspector, the defects in the draw-head, if there were any, were not discovered, the court tells you that the plaintiff cannot recover for any neglect or carelessness on the part of the car inspector, either in not inspecting said car, or in failing to discover said defect, for the reason that said car inspector was plaintiff’s fellow-servant, and you must find for the defendant.” The jury returned a verdict for plaintiff for $6500.
In Mayor v. Baily, 2 Denio, 433, Chancellor Walworth, in defining ordinary care, says: "The degree of care and foresight which it is necessary to use must always be in proportion to the nature and magnitude of the injury that will be likely to result from the occurrence which is to be anticipated and guarded against.” And Beach on Contributory Negligence, sec. 9, says: “He who does what is more than ordinarily dangerous is bound to use more than ordinary care; that is to say, it will require greater care under those circumstances to amount in law to ordinary care, than it would if the undertaking were less hazardous.”
2. The second ground of the motion alleges error of the court in refusing certain instructions prayed by the appellant ; and the third ground relied on is error of the court in giving certain prayers of the appellee. They may be considered together, and we deem it necessary to look only to the second instruction given for appellee, and instruction numbered 12 asked by appellant and refused. Both are set out in full above. The one given, in short, holds that the yard inspector was vice-principal and not a fellow-servant of appellee; while the one refused was based upon the theory that, under the law, the yard foreman and yard inspector were fellow-servants.
We are well aware that there is great conflict upon the question presented by the facts of this case. We know that one line of authority upholds the view of the honorable circuit judge, as also the contention of appellee here; while another sanctions the view of the law expressed in the rejected prayer of the appellant. The court has endeavored to arrive at such conclusions as will best conserve the great interests of those to whom masters and employers owe the duty of protection; as also the ancient principles and land-marks of the law which we should especially guard. As in most cases the chief difficulty lies not in the ascertainment of the law applicable to any one proposition; but in the blending of those principles applicable to the whole case.
While we .recognize the liability of the railway company for the wilful or negligent default of its chief inspectors, and those deputed to supervise the condemnation of unsuitable-tools, rolling stock, etc., we cannot assent to the proposition that every yard inspector on the line of a railroad is a vice-principal. Upon what we conceive to be the soundest principles, and the weight of authority we hold that the appellee and the yard inspector were fellow-servants, and hence that appellee had no cause of action against the appellant. St.. L., I. M. & S. R. R. v. Gaines, 46 Ark., 555 ; Smith v. Potter, 2 A. & E. R. R. cases, 142; R. R. v. Foster, 11 A. & E. R. R. cases, 187; Coons v. R. R., 5 N. Y., 492; R. R. v. Fitzpatrick, 17 A. & E. R. R. Cases, 578; Whaalan v. R. R., 8 Ohio St., 257; Mackin v. R. R., 135 Mass.,, 201; T. & P. Ry. v. Harrington, 62 Tex., 597; Kirk v. R. R., 25 A. & E. R. R. Cases, 512; Brown v. R. R., 6 W. Rept., 485; Gibson v. N. Y. Cent. Ry., 22 Hun., 292; R. R. v. Hughes, 49 Miss., 285; R. R. v. Murphy,. 53 Ill., 337; Robertson v. R. R., 78 Ind., 79; Valtez v. R. R., 85 Ill., 502.
It follows, therefore, that the court below erred in giving plaintiff’s second prayer and in refusing that numbered 12 asked by the defendant. Let the judgment be reversed and the:cause remanded for further proceedings.
