124 Ark. 298 | Ark. | 1916
This is the second appeal of this case. The opinion upon the former appeal will be found in 118 Ark. 377, and the facts as there stated are substantially the same as those developed at the trial from which this appeal is prosecuted, except in the respects to which attention will be called. At the trial from which the first appeal was prosecuted, appellee predicated his right of recovery on the Act of the General Assembly of this .State approved March 8, 1911 (Acts 1911, p. 55), but on the remand of the cause appellant amended its answer and alleged that, at the time of his injury, appellee was employed in interstate commerce and that his right of recovery, therefore, depended upon the Federal Employers’ Liability Act of April 22, 1908, and not upon the State statute .under which the first trial was had. Appellee conceded that this was correct, and all the instructions given were drawn to conform to the Federal statute.
The difference between the two statutes, so far as it is material here to consider the difference, is that, under section 2 of our statute, the railroad company is deemed to have knowledge of the defect in its appliances, and proof of the existence of the defect is prima facie evidence of negligence; while, under the Federal statute, the common law rule in this respect has not been changed.
At the trial from which the first appeal was prosecuted it was shown-that appellee was injured by reason of the fact that a skid broke and threw a piece of piling on him. There was expert evidence showing that a sound skid should have safely supported a weight several times greater than that of the piling which caused the skid to break. Thereupon the court directed the jury to find for the plaintiff upon the question of negligence, and submitted to the jury the question only of the assessment of damages., We held that this was error, as, under the evidence, the jury should have been permitted to pass upon the question of the primary negligence of the company. Attention was called to the evidence of the foreman of the gang, of which appellee was a member, wherein he stated that “he observed the guard rails after they were taken from the bridges and that there were no defects in them.” At the trial from which this appeal is prosecuted the foreman was not so definite on the subject of the inspection of the timbers from which the skids were made. Indeed, appellant undertook to impeach, him by proof of contradictory statements on this subject contained in his evidence on the former trial. At this last trial he was asked, “How close did you ever get to the skids that were being used?” and he answered, “I suppose I passed them in my work laying on the ground.” He was asked the following questions and gave the answers set out: “At that time did you give them any particular inspection?” A. “No, sir.” “You just saw them like passing by this courthouse, and see them?” A. “Yes, sir.” “Did you ever make inspection of the skid that broke with a view to see if it was defective?” A. “No, sir.”
It appears, therefore, that the jury was warranted in finding that no inspection was, in fact, made.
Appellant insists, however, that the evidence is not sufficient to warrant the finding that reasonable care required that an inspection be made; and it also insists that an inspection such as would have been required by the exercise of ordinary care only would not have revealed any defect in the skid. In other words, if a defect existed the exercise of ordinary care in inspecting the skid would not have disclosed its existence.
As at the former trial, so in this, the.proof showed that a skid the size of the one in nse when appellee was injured should have safely supported several times the weight of the piling which caused it to break. The expert witness stated it should have sustained ten times the weight of the piling. The conclusion, therefore, is warranted that the skid was, in fact, defective.
It will be borne in mind that appellee was not employed at the skid which broke and he was not, therefore, afforded an opportunity to make an inspection of it.'
The Andrews case contains a very clear declaration of the law on this subject. The master is required to make aii inspection only when ordinary care suggests the necessity for it. And the inspection made must be such as ordinary care suggests' as being necessary under the circumstances of the case.
A supplemental motion for a new trial was filed, in which a showing was made that appellee’s injuries were exaggerated by him; but this motion was heard and disposed of on conflicting evidence, and we can not say the finding of the court is unsupported by the evidence.
Section 6661 provides that “* * * every person who shall sustain loss or damage to person or property from any railroad for which a liability may exist at law * * * shall have a liqn on said railroad * * * for said damages and upon the road-bed, buildings, equipments, income, franchise, right-of-way, and all other appurtenances of said railroad, superior and paramount, whether prior in time or not, to that of all persons interested in said railroad as managers, lessees, mortgagees, trusteed, and beneficiaries under trusts or owners.”
' Section 6662 reads as follows:
“The lien mentioned in the preceding section shall not be effectual unless suit shall be broug’ht upon the claim, or the claim shall be filed by order of court with the receiver of said railroad within one year after said claim shall have accrued.”
Appellee insists that these sections should be construed to mean that the claimant has one year after his claim has been reduced to judgment, in which to file his claim with the receivers who now have charge of the appellant railway company. We think the language of the statute, however, precludes any such construction. No difference in time is made in favor of a claimant against a railroad company which is in the hands of a receiver over that given a claimant against a road which is not being operated by a receiver, and if there was no receivership, the contention would scarcely be made that more than one year was given in which to bring the suit. We think the word “claim” as here used refers to the cause of action and that the suit to establish it must be brought within one year after it accrued. Such appears to be the effect of the decisions of this court in the cases of St. L. & N. Ark. R. R. Co. v. Bratton, 93 Ark. 234, and St. Louis, I. M. & S. Ry. Co. v. Love, 74 Ark. 528.
Nor do we think that the fact that a suit was brought within one year of the accrual of the cause of action entitles appellee to the benefit of this lien. The present suit in which a lien is sought to be enforced was not brought within a year, although it was brought within less than a year of the date of the nonsuit in the former case. That fact might be sufficient to give the benefit of the lien if the provision for 'bringing the suit within one year was treated as a statute of limitations. But we think it is not to be so treated. It is rather a condition upon the performance of which the right to the lien is created. A very similar question was involved in the case of Anthony v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 219. That was a ease arising under section 6290 of Kirby’s Digest, commonly known as Lord Campbell’s Act, in which certain minors sought to recover damages for the alleged negligent killing of their father more than two years prior to the institution of their suit. It was there contended that the provision that the suit be brought within two years of the death of the person for whose death damages were claimed was a statute of limitations and did not apply to persons under disabilities, which exempted them from the operation of the statute of limitations, but it was there said that when a statutory right was created which did not exist at common law, and the statute which gave the right also fixed the time within which the right might be enforced, that the time so fixed becomes a limitation or condition upon the right of action and controls, and that inasmuch as the act which created the limitation also created the action to which it applied, the limitation was not merely of the remedy, but also of the right of action itself. .See authorities there cited. So, here, a preference is given for which no authority can be found in the common law. The preference exists only because the statute has given it, and one who wishes to avail himself of its benefits can do so only by complying with its terms. As appellee did not bring his suit within the time limited by the statute he can not claim the lien there given and, in this respect, the judg; ment of the court below will be modified, and, as thus modified, will be affirmed.