118 Ark. 377 | Ark. | 1915
(after stating the facts). It is insisted by counsel for the defendant that the action should have been abated because there was another suit pending to recover damages for the same injury in the Jackson Circuit Court. The facts upon' which this assignment of error is based are as follows:
The plaintiff first instituted an action in the Jackson Circuit Court to recover damages for the injury which is the foundation of the present action. The trial of the case was begun on September 23, 1914, and after a portion of plaintiff’s testimony had been introduced, by agreement of the parties the case was withdrawn from the jury and continued for the term. On the 3d day of October, 1914, the court adjourned until the 14th day of November, 1914, and on the 7th day of October, 1912, the plaintiff paid to the clerk of the Jackson Circuit Court the cost which had accrued in the action and the clerk entered of record a dismissal of the cause on motion of the plaintiff.
Section 6168 of Kirby’s Digest, provides that the plaintiff may dismiss any action in vacation in the office of the clerk on the payment of all costs that may have accrued therein. It is insisted by counsel for the defendant that the word “vacation” has a. technical meaning and means that period of time from the final adjournment of the court until its convening at the next term. We do not agree with counsel in this contention. Under section 6167 of the Digest the plaintiff may move the court to dismiss (before final submission of the case to the jury.
Where the case is dismissed in vacation in the office of the clerk it is proper for the clerk to enter an order of dismissal at the request of the plaintiff. Lyons v. Green, 68 Ark. 205.
Under section 6167 of Kirby’s Digest the action may be dismissed without prejudice by the plaintiff as a matter of right 'at any time before final submission of the cause; and after the cause has been submitted, in the interest of justice, the court may permit the plaintiff to withdraw the submission of his case and to take a nonsuib without prejudice. St. Louis Southwestern Ry. Co. v. White Sewing Machine Co., 69 Ark. 431.
This suit was instituted under the Employers’ Liability Act of March 8, 1911. See Acts of 1911, page 55. The first three sections of the act are as follows:
‘ ‘ Section 1. 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 from the negligence of any of the officers, -agents or employees of such carrier, or by reason of any insufficiency of clearance of obstructions, 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 ears, engines, motors, appliances, machinery, track, roadbed, boats, works, wharves or other equipment.
‘ ‘ Sec. 2. If the employee of any such common carrier shall receive iany injury or shall be killed by reason of any defect in any car or cars, engines, motors, appliances, machinery, track, roadbed, works-, wharves, or other equipment owned, operated or used by ¡such common carrier, such common carrier -shall be deemed to have had knowledge of -such defect before and at the time such injury is sustained or death caused, and when the fact of such defect -shall be made to appear in the t-rial of any action in the -courts of this State brought by such -employee or his or her personal or legal representative against any such common carrier for damages on account of such injuries so received or death -so caused, the same shall be prima facie evidence of negligence -on the part of -such common -carrier.
“Sec. 3. 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 f-acf 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 'killed shall be held to have been guilty of contributory negligence in -any case where the violation of 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 -su-ch employee -shall not be held to have assumed the risk of his employment in -any action arising out of any of the provisions of this act.”
The Supreme Courts of Indiana and other States have sustained the constitutionality of somewhat similar acts by construing them as designed exclusively for the benefit of those who are, in the course of their employment, exposed to particular dangers incident to the use 'and operation of railroad engines and trains and whose injuries are caused thereby. See, Indianapolis Traction & Terminal Co. v. Kinney, 171 Ind. 612, 85 N. E. 954, and 23 L. R. A. (N. S.) 711.
In the case of Louisville & Nashville Rd. Co. v. Melton, 218 U. S. 36, also reported in 47 L. R. A. (N. S.) 84, the court held that the modification of the fellow servant rule as to railway employees, made by the Indiana Act of 1893, did not offend against the equal protection of the. law clause of the Federal 'Constitution because construed as applying to all employees doing work essential to enable the. carrying on of railway operations, and not as limited to those engaged in or about the movement of trains, and that such general classification of railway employees was a proper exercise of the police power.
Other decisions sustaining this view are cited in the case note.
The views expressed by the United States Supreme Court are in accord with the trend of our own decisions. See Ozan Lumber Co. v. Biddie, 87 Ark. 587; Aluminum Co. v. Ramsey, 89 Ark. 522; Board v. Western Anthracite Coal and Mining Co., 92 Ark. 502.
The courts of North Carolina and some other States, under statutes somewhat similar, have held that the language is broad enough to include injuries sustained by any employee in the course of his employment. See Mott v. Southern Ry. Co., 42 S. E. 601, and case note to 47 L. R. A. (N. S.) p. 84. To give the ¡statute this 'broad and comprehensive construction would eliminate and render meaningless all the remaining portion of the section.
In .the case of Kansas City & Memphis Ry. Co. v. Huff, 116 Ark. 461, 173 S. W. 419, we have already held that the first part of section 1, referred to .above, does not refer to every servant of ¡a railroad company injured in any department while in the course of his employment, ¡but that the language was copied from ¡statutes in other ¡States where it was used to abolish the common law rule in regard to fellow servants. In that case we said:
“The 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 Ry. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, the court construed the phrase, ‘resulting in whole or in part from the negligence of any ¡of the officers', agents, ¡of employees of such carrier. ’ This quotation appears in the Federal Employer’s 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 of 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 .such 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.”
It will be observed that the latter part of section 1 uses the language, “which defect is due to its negligence in its oars, engines, motors, appliances, machinery, track, roadbed, boats, works, wharves and other equipment.” When'this language is carefully read, we are of the opinion that the logical rule to be adopted is that the statute applies to those employees who are connected with the use and operation of the road. The word “appliances” as used in the statute extends to all those instrumentalities which are supplied and furnished to the servant by the master for the servant’s use in the operation of the road.
After a careful consideration of the whole statute we do not think the Legislature intended to restrict its terms to those actually engaged in running trains. The statute refers to motors, boats, works, wharves and other equipment 'and contemplates that the railroad company might have wharves and boats and unload freight from them on the cars, or vice versa. We think the statute is broad enough .to include something more than the mere running of locomotives 'and trains of the railroad company. It includes every employee who, when injured, was performing some work in the line of his duty directly connected with .and incident to the use and operation of a railroad. The loading and unloading of cars is intimately associated with and directly connected with the operation of a railroad. Plaintiff at the time he was injured was doing a part of the work necessarily connected with the operation of defendant’s trains. He was helping to load a car with piling to be transported to another part of defendant’s line of road and this work was inseparably connected with the operation of the defendant’s line of road, and brings this ease within the spirit of the statute. See, Chicago, Kansas & Western Rd. Co. v. Pontius, 157 U. S. 209; Daley v. Boston & A. R. Co. (Mass.) 16 N. E. 690; St. L. S. W. Ry. Co. of Texas v. Thornton, Tex. Civ. Ct. Appls., 103 S. W. 437; Orendorff v. Terminal R. Association of St. Louis, St. Louis Ct. of Appeals, 92 S. W. 148. Other eases supporting this conclusion will be found in the case note last above referred to.
It is true that ¡section 2 -of the .act under which this action was brought provides that the railroad -company ¡shall be deemed to have had knowledge of the defect in its ¡appliances ¡and that when the fact of -such defect shall be made to -appear in the trial -of any -action in the courts of -this State brought by an employee, the same shall be prima facie evidence of negligence on the part of such common carrier.
It was conceded by the defendant that the plaintiff was free of contributory negligence and the act by its terms took away from 'the defendant the plea of assumed risk. But, as already stated, we think the question of ■the primary negligence of the defendant was one of fact for the jury.
The pl-aintiff introduced a civil engineer who stated that he could tell the weight of the piling which was being rolled over the skids at the time plaintiff was injured if the dimensions thereof were given him, and stated that from the dimensions testified to by the plaintiff’s witnesses the piling in question would weigh a little more than 500 pounds; iand that a sound piece of pine timber, four by eight inches ‘and nine feet long, would be capable of holding up several times that weight.
On the other hand the foreman testified that he 'Observed the guard rails after they were taken from the bridges and that there were no defects in them.
The number of guard rails lying around there were variously estimated from three or four to about twelve. The particular guard rails which were used as skids were selected by some of the employees each time they began to unload the push car. At the time plaintiff was injured he saw some of the other servants pick up the guard rails and place them on the push car and flat car to be used as skids, (but says that he did not pay any particular attention to them.
It follows, therefore, that the judgment must be reversed and the cause remanded for a new trial.