Fordyce v. Briney ( 1893 )

MansEiebd, J.,

(after stating the facts.) At the time of the injury for which the plaintiff recovered, he and Charles Hickey were in the service of the railway company at its round-house in Jonesboro, the former as car-repairer and the latter as car-inspector. C. Bushmeyer was foreman of the round-house, and appears to have had charge of the business of the company at that place. He alone had power to employ and discharge the men who worked for the company there, and Hickey and the plaintiff both worked under his supervision and control.

The position of Hickey, so far as the record discloses it, may be stated in a few words: It was his duty to inspect the cars, and to call the attention of the car-repairers to such defects as he found to exist. It then became their duty to make the necessary repairs, under his direction and instruction.

The company had at Jonesboro a track which was used as a repair track, and sometimes for making up trains. On the morning the plaintiff was injured, a caboose and about twenty-five flat cars were standing coupled together on this track ; and the plaintiff, who had been informed that the train thus made up was going out that morning, went under the caboose, by the request of Hickey, to repair it. While he was under the caboose, which was behind the cars, an eng'ine was coupled to the cars, and the train was started without ringing the bell or sounding the whistle. At a signal from Hickey, the train was stopped, but not until its. movement had resulted in the injury complained of.

On the.trial it was shown that a rule of the company, appearing on its time cards, required employees to put out signals when they were repairing cars coupled together; and that the signal in day time was a red flag, which it was the duty of the workman making the' repairs to put out. In testifying for himself, the plaintiff admitted that he knew that red flags were used as danger signals in going under cars off the repair track, but stated that they were never used on that track ; and it appears that he used none on the occasion referred to.

Two of the principal questions which the charge of the court submitted to the jury, as affecting the liability of the defendant, were: (1) whether Hickey was a vice-principal; and (2) whether the company performed its duty in adopting rules to promote the safety of its employees while engaged in repairing cars.

i. Doctrine On the first of these questions, the fourth instruction of the court was to the effect that “if it was duty of the plaintiff, as car-repairer, to work under the authority and control of the car-inspector,” and he was so working at the time he was injured, then the car-inspector was not his fellow servant. This was error. There was no evidence that Hickey, the car-inspector,1 sustained to the car-repairers any relation other than that of a mere foreman directing their labors ; and the possession of such authority as that implied did not make him the representative of the defendant. Fones v. Phillips., 39 Ark. 39 ; Bloyd v. Railway Co. ante, p. 66. The first clause of the sixth instruction is equally objectionable, on the same ground. And in this connection it is proper to say that there was no evidence tending to show that Hickey was charged with thfe duty of performing any act looking to the safety of the place where the plaintiff was directed to work.

2- Duty of master to reg'“ta' The court’s fifth instruction, and the second clause of the sixth instruction, apply to the second question stated above, and both of those instructions are assigned as error. Upon a similar question the following language was used by this court in Railway Co. v. Triplett, 54 Ark. 289, and with reference to a rule adopted by the defendant in that case: “It is claimed by the company that if this rule was sufficient, when faithfully observed by its employees, to guard against the danger, the company has discharged its duty. This seems to be the general rule o£ the law, when the circumstances are such that a reasonably prudent person might rely upon rules and regulations to afford protection. But if the master sees proper to rely upon such methods of protection to his servants, and the occasion demands it, he should also adopt such measures as majr be reasonably necessary to secure the observance of such rules.” And the court added that “the degree of care” the master should exercise “must always be measured by the exigencies of the particular case.” It was accordingly held in that case that “ where a car-repairer was engaged in work under a car so situated that a jar from an approaching car would cause it to fall and crush him, it is the duty of the company, when apprised that its regulations are insufficient to protect him, to adopt such measures as will afford him reasonable protection against the dangers incident to the performance of his duties.” These quotations sufficiently indicate a just and practical rule for measuring the diligence required of this defendant in discharging its duty to the car-repairers as to a safe place in which to work. If the signal, which, by the company’s rule, it was made their duty to give by displaying a red flag, was a safe-guard upon which ‘ ‘ a person of ordinary prudence ” might rely as affording “reasonable protection” against the dangers to which the workmen were exposed in pursuing their labors on the repair tracks, then the company would not be guilty of negligence by failing to resort to other means of protection before the rule proved to be ineffectual, or there was reason to believe that it was so. But if the company knew, or ought reasonably to have known from the circumstances, that the rule was inefficient, because it was in itself insufficient, or because it was disregarded by the persons operating the trains, then a failure to adopt such other or additional rule or regulation as “a reasonably prudent person” would rely upon for protection would be negligence. Railway Co. v. Triplett, 54 Ark. 299-301.

We think the court did not intend to apply to the question of the defendant’s negligence any doctrine not approved by the decision in Triplett’s case; and we think the evidence was such as to warrant an appropriate charge in harmony with the rule there applied. But the charge on this point is not as explicit as a phraseology somewhat different from that employed would have made it; and it contains some expressions that may possibly have led the jury into regarding it as the duty of the company to adopt some measure with special reference to the safety of the plaintiff on the particular occasion of his injury, whether there was reason for 'distrusting the efficiency of the general rule or not. Nor is it entirely clear to us that other expressions used may not have been taken to require such provision against danger as would insure the absolute safety of the plaintiff.^* But it is not probable that this part of the charge was actually misleading, and we cannot say that a fair and reasonable construction would make it so.

3 Dutyof obeyañíies. The next assignment complains of the court’s seventh instruction. But that instruction was plainly without prejudice to the appellant, as will appear by comparing it with an instruction on the same subject held to have been correctly given in Railway Co. v. Leverett, 48 Ark. 348.

The eighth and last of the court’s instructions was also objected to. But the only defect mentioned by counsel was cured by the sixth instruction given at the defendant’s request, and by its tenth instruction, which was also given with a modification properly made by the court.

4. Duty oí servant to take precautions, The defendant requested the following instruction, r t . which tlie court retused to give: lhe jury are mstructed that, notwithstanding the caboose, under which the plaintiff was working at the time he received the injury complained of, was on the track known as the ‘repair track,’ if a train of cars to which the engine was' coupled was backed upon the repair track, ready to be’ coupled with an engine and pulled out, then the plaintiff would be required to take the same care and precaution for his safety and protection that he would be required to do, had the caboose and train of cars been standing .coupled together on any other track in the yard.”

On the facts of the case, this instruction was proper,' and it was error to refuse it. The plaintiff testified that ‘‘ it was usual, and the duty of car-repairers, when they went under trains, to put out red flags ; ” but that “ the company never before had a train on the repair track that he knew of.” His own testimony tends strongly to show, if it does not admit, that the company’s rule was within his knowledge ; and his statement can hardly be said to be a denial that the rule applied as well to a train off ,the repair track as to one on it. The track was not, in a proper sense, a repair track, while it was being- used in making up a train ; and as the defendant knew that the caboose under which he was injured was attached to a train made up on that track, and soon to be taken out, he must have known that the same necessity for observing the rule existed as if the train had been upon- any other track.

Nor the errors of the court in refusing the instruction just noticed and in giving the fourth instruction and the first clause of the sixth instruction, the judgment is reversed, and the cause remanded for a new trial.

* See St. Louis, etc. Ry. Co. v. Gaines, 46 Ark. 567 ; S. W. Telephone Co. v. Woughter, 56 Ark. 210.