115 Ark. 308 | Ark. | 1914
Plaintiff’s intestate, W. N. Sharp, worked for defendant railroad company in the yards at Newport, Arkansas, as car inspector and repairer; and, while in the discharge of his duties, received personal injuries from which death resulted on the following day. He was survived by his widow and two children, and this action was instituted by the widow, as administratrix of the estate, to recover damages resulting from decedent’s injury and death. Sharp was working underneath a freight car, repairing an air pipe called the train-line, when a car which was kicked in on the same track by the switch crew ran against the car underneath which he was working and caused it to run over him and out off one of his legs. The car which he was repairing was one used at the time in interstate commerce. It was consigned at Kansas City, Missouri, to Tuckerman, Arkansas, and when it arrived at Newport on the day before Sharp’s injury, the defect was discovered and it was left out of the train for repairs. Sharp and a fellow-worker named Ellen composed the day shift of car repairers who worked under a foreman; and on the day the car was left at Newport, they did some work on it. That was Saturday afterenoon, and the next morning, Sunday, the car was shifted to another position and Sharp and his companion resumed their labors, when the injury occurred.
The alleged iaet of negligence relied on for recovery in the case is that of the members of. the switch crew, who, it is charged, with knowledge that Sharp 'and his companion were at work there, negligently kicked the car in on the track and against the car beneath which they were at work. The contention of the defendant, on the other hand, is that there was a rule of the company requiring the car repairers to protect themselves by the use of blue flags which would give warning of their presence under cars; that deceased violated the rule by failure to put out flags; and that his own act of negligence was the sole cause of his injury. Plaintiff met this contention ■by attempting to prove that there was a uniform and habitual violation of the rule, within the knowledge of the officers and servants of the company whose duty it was to enforce it, which amounted to a total abrogation of the rule; that the customary method of work in the yards at Newport was that when a car was placed in position or spotted on the sidetrack for repairs, the members of the switch crew must refrain from running cars on the track until they receive notice that the repairs had been completed; and that in this instance the switch crew knew that the car had been placed there for repairs, but, without notice, kicked a ear in on the sidetrack against this car. The defendant established by proof the fact that it had promulgated a rule that ‘ ‘ a blue flag by day and a blue light by night, at one or both ends of an engine, ear or train, indicates that workmen are under or about it,” and that “workmen will display blue signals, and tbe same workmen are alone authorized to remove them.” It was proved, also, that Sharp, when he took service with the company, about a year before his injury and death, signed a statement acknowledging receipt of a copy of the rule. The defendant also adduced testimony of numerous witnesses to the effect that the rule had never been disregarded or abrogated, and that the constant effort -of the company was to enforce it. The plaintiff adduced testimony of numerous witnesses, men who worked in the yards; at Newport, to the effect that this rule was always disregarded and that the foremen of the car repairers, when frequently importuned to furnish the flags, expressly refused to do so and instructed the repairers to disregard it. There were two switch crews — a day shift and a night shift — in charge of a foreman; and also two repair crews or shifts working under another foreman; and it was proved by affirmative testimony that the foreman of each of these crews knew of this habitual disregard of the rule and acquiesced in it, the proof being that some of them expressly declined to regard the rule and gave directions to the workmen to disregard it.
The Dupree case, supra, was identical with this one in that it was a suit by a ear repairer on account of injuries received, and the company proved a rule the same as in this ease, and the plaintiff undertook to show an abrogation of the rule. Following the law as stated in the Caraway case, we said that “where such rule is habitually violated, and such violation is known to or acquiesced in by the master, so that it amounts to an abandonment of the rule, then evidence of such habitual violation is admissible for the purpose of repelling the inference which would otherwise be drawn from the existence of the rule itself.”
In another case (El Dorado & Bastrop Railroad Company v. Whatley, 88 Ark. 20), we cited with approval the following statement of the law by .the Supreme Court of Alabama: “Custom and usage may be relied upon to excuse the violation of a rule when the act involved is not negligent in itself, but only by relation to the rule violated; and so, when an act may be done in two or more ways, a resort to neither of which involves such obvious peril as raises the legal presumption or conclusion of negligence in the doing of it, a custom or usage to do it in a particular way may be looked to as tending to show that it was not negligence to resort to that method in the instance under consideration. But custom can in no case impart the qualities of due care and prudence to an act which involves obvious peril, which is voluntarily and unnecessarily done, and which the law itself declares to be negligent.” (Citing authorities.) Warden v. L. & N. Rd. Co., 14 L. R. A. 552.
The instructions given by the court at the request of the plaintiff are not in conflict with the views here expressed, and we think correctly submitted the issues to the jury. Timely objections were made by the defendant to each of the instructions given at the plaintiff’s request, and exceptions were duly saved but we deem it unnecessary to discuss those instructions in detail or to set them out, except one, which reads as follows:
“2. Although you may find from the evidence that, at the time of the injury to W. N. Sharp, the defendant had in force a rule requiring its employees to display a blue flag or flags while performing work in its yards, still, if you find from the evidence that for a number of years this rule had been openly, continuously and habitually disregarded by the employees of defendant for such period and for such an extent during said time down to the date of said injury as to lead to and justify the belief that the rule had been abrogated by the company, or its nonobservance acquiesced in, then the failure to obey said rule by the said W. N. Sharp will not of itself prevent a recovery, provided that you find that the nonobservance of the rule was known to the defendant or was for a long period and of so frequent occurrence as to cause you to believe that defendant must have known or acquiesced in its nonobserv-ance; and in determining whether or not the rule has been abrogated, or its nonobservance acquiesced in by the company, you may take into consideration the period of time, the extent of upenness with which the rule had been violated by the em-. ployees of the defendant, if you find from the evidence that the rule had been violated.”
The question of assumed risk is not, we think, involved in this case, since the jury has found that the rule promulgated by the company had been abrogated.
There are other questions raised which we do not think of sufficient importance to discuss. It is urged that the verdict is excessive, but we think the testimony is abundant to sustain the amount of damages assessed by the jury. •
The judgment is therefore affirmed.