67 Ark. 377 | Ark. | 1900
(after stating the facts.) It is unnecessary to set out the instructions given and the one refused. We find no error in the court’s action for which the case should be reversed.
The questions in the case are: 1st. Was the company guilty of negligence which caused the injury? 2d. Were Compton, the foreman, and the deceased switchman, Epple, fellow servants? 3d. Was Epple guilty of contributory negligence?
The evidence tends to show that Epple, the deceased, under Harry Nolan, foreman of the switch crew to which he belonged at the time of the injury resulting in his death, was engaged on the van or transfer track of the defendant’s railway in coupling cars to be moved out by his crew, and which had been placed on said track by the crew at the other end of the track, working under the control and direction of Compton as foreman; that Compton ordered eight or ten cars put on his end of the track to be received by Nolan’s crew at the other end of the track, and that these cars were sent or “kicked” down this track at a very considerable rate of speed, ran against cars standing on the track, and pushed them with great force against others in front of them; that Epple at the time was between the cars first struck and those in front, was knocked down and received injury, from which he died in about four hours. The proof tends to show ihct Epple at the time was in the discharge of his duty, coupling the ears struck to those in front; that this occurred in the night time about 9:30 o’clock; that the night was dark; and that it was raining. There is no evidence that any effort was made to ascertain if the track was clear, or if anyone was on the track, nor is there any evidence that there was any means of controlling these eight or ten cars that were thus “kicked” or “shunted” down this track, upon which men were constantly engaged in receiving and moving out cars, when such work was necessary. We are of the opinion that the evidence is sufficient to support the finding that sending the cars down this track in the manner stated was negligence.
Was the deceased switchman, Epple, guilty of contributory negligence? It appears that he was in ■ the discharge of his duty. The night was dark, and it was raining. There is no evidence that he did not look and listen for the cars “shunted” or “kicked” on the transfer track before going between the cars to couple them. He was justified in believing, which he must have believed, that cars would not be sent down the track in the manner they were sent, without warning, and without regard to whether any one might be on the other end of the track. Contributory negligence is a question of fact for the jury, and must be proved, and by their verdict the jury have said that Epple was not guilty of it, and we think the evidence supports the finding.
Were Compton and Epple fellow servants? Under the decisions before the passage of the act of 1893 (Sandels & Hill’s Digest, sections 6248 and 6249) they would be held to be fellow servants, because they were working in one common employment at the same time and place, to a common purpose, that was, the switching of cars. The first section of the act of 1893 (p. 68) reads as follows: “All persons engaged in the service of any railway corporation * * * who are entrusted with * * * superintendence, control or command of other persons in the employ of such corporation, or with the authority to direct any other employee in the performance of any duty of such employee, are vice principals of such corporation, and are not fellow servants with such employee.” The second section of this act is as follows: “All persons * * * * engaged in the common service of such railway, and who * * * are working together to a common purpose, of the same grade, neither of such persons being entrusted by such corporation with any superintendence or control over their fellow employees, are fellow servants with each other.” We have found no statutes of other states exactly like ours. The Texas statutes are very nearly like ours.
In the view we have taken of this statute, as applied to this case, unless Compton was of the same grade as Epple, they were not fellow servants, because the second section of the act provides that if they were of the same grade, they were fellow servants, “neither being entrusted with any superintendence and control over their fellow employees.” Now it seems ap - parent that they were not of the same grade; for Compton was a foreman, having superintendence and control over his fellow employees, while Epple was a switchman, obeying the commands of a foreman having superintendence and control of his fellow employees. It seems clear they were not of the same grade. Again, was not Compton entrusted with superintendence and control over his fellow employees? He certainly had superintendence and control of fellow employees of the class of switchmen of which Chas. Epple, the deceased, was one. We think it would be a strained construction to say that, because Compton had no immediate control at the time over Epple, who was under the superintendence and control of Harry Nolan, his immediate foreman, that therefore he was a fellow servant of Compton. This construction would put the men of one crew without pro - tection from the carelessness of the foreman of another crew, which crew was obeying his commands, and could not reasonably be held guilty of negligence in such a ease as this. Many decisions are cited by the appellant in its brief to show that the proper construction of such an act would make the foreman and the switchman fellow-servants, and such seems to be the tendency of some of them, especially decisions cited from Texas. But we do not agree to any such a construction, and think the conclusion to which we have arrived is in consonance with reason, and a proper construction of this act. Compton. as the representative of the company, had the superintendance and control of the crew which was ordered to and did send eight or ten cars down the transfer track, which came violen tty in collision with cars being coupled by the deceased in the night time while it was raining, causing the injury to the deceased, who was of a class over a crew of which class Compton had control.
We think Compton, the foreman, and Epple, the switch-man, were not fellow servants, under the circumstances of the case, under the act of 1893. We think that we are in harmony with Kansas City, F. S. & M. Ry. Co. v. Becker, 63 Ark. 485, on this question.
Were the damages excessive? We find the deceased at the time of the accident was earning a salary of $60.00 per month, that he frequently sent money to aid in the support of his children, as much as ten dollars at the time, and generally at the time the board bill of one of the children was due; that at one time he sent two twenty dollar bills; that the deceased lived four hours after his injury; that he suffered pain, how much the doctor could not tell. We think the damages not excessive.
Affirmed.
