St. Louis Southwestern Railway Co. v. Lewis , 91 Ark. 343 ( 1909 )

Battue, J.

M. R. Lewis sued the St. Louis Southwestern Railway Company for damages for an injury caused by its failure to properly inspect its cars. He alleged that he was on the 27th of February, 1907, in the employment of the defendant as conductor of one of its gravel trains, and while so engaged sustained painful and permanent injuries as a result of the gross negligence of the defendant; that in the discharge of his duties as such conductor he caused said train to be moved to the Bearden Gravel Pit on its line of railway, for the purpose of loading the same with gravel for use on defendant’s railway, and caused it to be stopped at the place where it was the custom of the railroad company to inspect its cars and to repair any and all defects and injuries that any-of them may have received, and after it had been stopped sufficiently long for such purpose caused it to be moved to a steam shovel there located to be thereby loaded with gravel, and when it stopped placed his foot upon the stirrup or step of one of the cars of the train for the purpose of alighting, and it, being defective, as he did so, swung around from one end, and threw him to the ground, and thereby inflicted hernia in one of his sides, a painful and permanent injury. He further alleged “that said stirrup on said car was defective, and that same was known to the defendant, or could have been known to it by the exercise of ordinary -care; but that defendant, through its agents and employees, did not exercise ordinary care in the inspection and repair of its said cars, but was guilty of gross negligence, thereby causirfg the injury to the plaintiff as above;” and charged “that defendant has been guilty of negligence in not providing safe appliances for its said cars, and in the use and employ of defective machinery and appliances, to the plaintiff’s great injury;” and .stated “that, by the wrongful and negligent acts- of the defendant, plaintiff has suffered great bodily pain and mental anguish and suffered permanent injury; and that he -has suffered such injury as renders him unable to perform his usual labors and incapacitates him for performing manual labor of any kind; and that he has been damaged thereby in the sum of $20,000,” for which -be asked for judgment.

The defendant admitted that plaintiff was in its employment, and denies all other material allegations, and pleaded contributory negligence and assumed risks -by plaintiff as defenses.

A trial of the issues before a jury followed, in which a verdict was returned in favor of the plaintiff for $1,500; and the defendant appealed.

Evidence was adduced in the trial tending to prove the following facts: On the 27th -day of February, 1907, plaintiff, Lewis, was a conductor in the employment of the defendant, St. Louis Southwestern Railway Company, having in charge of the moving of the trains of the railway company and the loading of its cars with gravel at Bearden Gravel Pit. He had caused a line of cars to be moved down to the steam shovel at that place for loading, and was stepping from one of the cars to a step suspended under the sill on the side of the car. The step gave away, and he fell to the ground, a distance of about two feet, which caused a hernia in his left side and much pain and suffering. This step “was in the nature of a stirrup, being on the ends of bolts coming down through the sill.” It was a flat piece of iron bent in the shape of the letter U. A bolt passed through each end, and was secured by nuts. After appellee had fallen, he discovered that one of these nuts had come off, leaving one end of the step unfastened. When he put his weight on the step, the end slipped off the bolt, and he fell. He could not have discovered the defect in the step before falling, without getting down on the ground and looking up from beneath the car.

Inspectors were sent to and kept at Bearden Gravel Pit to inspect the cars of the appellant arriving at that place. They made all necessary repairs they could that this inspection disclosed, and, if they could not -be made there, the car was sent to the shops at Pine Bluff, Arkansas. They made report of cars inspected to a Mr. Adams, “the superintendent of motive power at the Pine Bluff shops.” C. E. Yowell was foreman of the freight car repairs of appellant in its shops at Pine Bluff. The inspectors at Bearden Gravel Pit were employed by him, and he sent them there as car repairers and inspectors. They inspected the-car with the defective step a short, time before and on the day appellee was injured. They failed to discover the defect, and no good reason is given for the failure. The car was moved a very short distance after the inspection to where appellee fell.

T. S. Stinson was train master of the appellant, and in February, 1907, was in charge of the Bearden Gravel Pit, together with the gravel trains of the appellant “and the operations of the grading of its road.” So it appears that appellee and the inspectors were in different departments'of service.

The court instructed the jury, in part, as follows:

“1. It is the duty of the master to exercise reasonable care in providing safe appliances and apparatus with which his servants are required to work, and in inspecting and repairing such appliances, and in discovering any defects therein, and the extent or degree of such care — that is, what is reasonable care — must be determined by the nature of the business in which he is engaged and the ordinary manner of their use and the dangers ordinarily arising therefrom. It is such care as a reasonably prudent and careful man, having a reasonable regard for the safety of others, would use under like conditions. But the master is not an insurer of lives, health or safety of his employees, nor of the soundness or safety of the appliances so furnished for their use. His liability ceases in law when he has used reasonable care in their selection, construction and maintenance, as above stated, and the mere fact that the injury may have resulted from the use of defective appliance would not, of itself, create a cause of action in the injured party against the master. In order to entitle him to recover damages for such injury, the burden is on the plaintiff to show, by a preponderance of the evidence, that: (1) He has been injured. (2) That such injury was caused by the operation of a defective appliance furnished by the master. (3) That such defective condition was known to the inspectors of the company, or some of them, or that it was such that it would have been known by them, or some of them, before the accident, if they had used reasonable care, skill and diligence in the performance of their duties, and that they did not use such reasonable care, skill and diligence in inspecting the appliances which caused the injury and in discovering and repairing the defects therein. The presumption of the law is that the master had performed his duty in furnishing proper appliances, and that, if any defects existed, he was ignorant thereof, and the burden is upon the plaintiff to show the contrary by a preponderance of the evidence.”

“2. If you find from the evidence that the injury complained of was caused by a defective, unsafe and dangerous condition of the stirrup mentioned in the testimony, and that such stirrup was in such defective, unsafe and dangerous condition at the time of the inspection by the car inspector, as mentioned in the complaint and answer, and that by the exercise of ordinary care the defective, unsafe and dangerous condition of such stirrup could have at the time of inspection been discovered. so that said defect could have been remedied, and such stirrup rendered in a safe condition for use, then your verdict .will be for the plaintiff in such sum, if any, as he has been damaged thereby.”

No objection is urged by appellant against the foregoing instructions in its brief. They are substantially correct. It was the duty of the appellant to have provided the appellee with suitable instrument and means with which to do his work and a suitable place in which he, exercising due care himself, could have discharged his duties as safely as the hazards incident to his employment would have permitted. In the performance of these duties it was only bound to exercise reasonable and ordinary care; and it was its duty to exercise the same care to keep such place, means and appliances in the same condition. The evidence that the appellee was injured on account of the defective step was not sufficient to hold appellant liable; but it was necessary to show that it did not exercise proper care in the premises. St. Louis, Iron Mountain & Southern Railway Company v. Gaines, 46 Ark. 555; Little Rock, Mississippi River & Texas Railway Company v. Leverett, 48 Ark. 333; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232; Park Hotel Co. v. Lockhart, 59 Ark. 465.

In the case at bar appellant employed inspectors to inspect the car. The evidence shows that a step was defective, and that this could have been discovered by proper inspection, and that its appointed agents for that purpose, with ample opportunity and means to do so, failed to make the discovery. Appellant, under the circumstances, ought to have known through these employees that the step was defective. The jury could reasonably have inferred from the evidence that its failure was due to neglect. The appellee and the inspectors, being in different departments of service, were not fellow servants under the statute in force at the time of the injury (Kirby’s Digest, § 6659), and appellant was liable for the consequences of the negligence of inspectors to appellee. St. Louis, Iron Mountain & Southern Railway Company v. Holmes, 88 Ark. 181.

The court gave the following instruction to -the jury over the objection of the defendant:

“3. If you find that the defendant company in this case is liable under tihe instructions heretofore given, and that the plaintiff received the injuries complained of in the manner alleged, and that at the time of such injury he was predisposed to hernia, but otherwise in good health, and that said injury was solely excited or caused by his fall from the car step described in the evidence, without his fault, and that his injury, whatever you find that to be, has directly resulted therefrom, then you are instructed that the plaintiff is entitled to recover to the fullest extent of whatever you find his injuries so received to warrant, notwithstanding such predisposition or weakness of the parts in regard to hernia.” This instruction states a rule of law well sustained by the authorities. Louisville, etc., Railway Company v. Falvey, 104 Ind. 409, 426-428; Crane Elevator Co. v. Lippert, 63 Fed. 942, 948; Vosburg v. Putney, 86 Wis. 278; Herndon v. Springfield, 119 S. W. 467; Watson on Damages for Personal Injuries, § § 219, 220; 1 White’s Personal Injuries on Railroads, § 170; 13 Cyc. 30, 31, and cases cited.

The evidence was sufficient to sustain the verdict.

Judgment affirmed.