St. Louis, Iron Mountain & Southern Railway Co. v. Steel

Wood, J.,

(after stating the facts). I. The appellant contends that the court should have directed a verdict in its favor on the issues of fact involved in the case, towit, as to whether or not Steel was injured as alleged in the complaint, and, if so, whether or not these injuries resulted in his death, and on the issues of negligence and contributory negligence and assumed risk. There was substantial evidence to sustain the verdict, which is conclusive so far as this court is concerned, and a discussion of the facts could serve no useful purpose as a precedent.

II. The next question for our consideration is whether or not the court correctly submitted the issues of fact in its instructions. -

On the issue of fact as to whether the death of Steel resulted proximately from the alleged injury or whether the proximate cause of his death was typhoid fever, the testimony was not the same on the last trial as on the first. On the last trial there was testimony from which the jury might have found that the proximate cause of' the death of Steel was the injury that he received, and that but for this injury his death would not have resulted from the typhoid fever alone, although such fever contributed to and concurred in producing his death.

(1) The court instructed the jury as follows: “Even if you should believe from the evidence that typhoid fever contributed to cause the death of deceased, yet if you further believe from the evidence that deceased received an injury as alleged and that said injury was caused by the negligence of the defendant's agents and servants as alleged, and that said injury, together with typhoid fever, caused the death of deceased, and that but for said injury deceased would not have died, then your verdict should be for the plaintiff. ’ ’

This instruction was correct and was warranted by the new evidence adduced at the last trial tending to prove, as we have seen, that Steel’s death would not have been caused by the typhoid fever alone, but that his death was caused by the injury, to which the typhoid fever also contributed and concurred in producing.

This court, in Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 98, quoted from Freeman v. Mercantile Accident Association, 156 Mass. 351, defining proximate cause where another cause also contributed to the result, as follows : ‘ ‘ The law will not go farther back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause ór causes beyond seeking the efficient predominant cause, which, following it no further than those consequences that might have been anticipated as not unlikely to result from it,.had produced the effect.”

This new testimony brings the case within the doctrine announced by this court in St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 301, as follows: “Where two concurring causes produce an injury which would not have re-suited in the absence of either, the party responsible for either cause is liable for the consequent injury, and this rule applies where one of the causes is the act of God. * * * The act of God which excuses must be not only the proximate cause but the sole cause. And where the act of God is the cause of the injury, but the act of the party so mingles with it as to be also an efficient and co-operating cause, the party will be still responsible.” See also numerous other authorities there cited.

In Belt R. & Stock Yards Co. v. McClain, 106 N. E. 742, it is-held: “Where two independent causes concur in producing an injury the party at fault for one of the causes will be held liable if the injury would not have occurred without it.” It is unnecessary that the negligent act be the last or nearest cause, though it must be an essential cause. Waschow v. Kelly Coal Co., 245 Ill. 516, 92 N. E. 303.

And in Brown v. West Riverside Coal Co., 120 N. W. 732, it is held: “Where the negligence of a responsible person concurs with an act of God in producing an injury such person is liable for the consequences, provided the injury would not have happened but for his failure to exercise ordinary care.”

The court also instructed the jury that if they found from a preponderance of the evidence that Steel died of typhoid fever there could be no recovery for his death unless they further found that he would not have died but for the fact of having previously received the injury as the result of the negligence of the defendant. This instruction was correct, under the new evidence, and having given these, the court did not err in refusing prayer for instruction No. 17 ^* , asked by appellant.

III. Among others, the court granted appellee’s prayer for instruction as follows: “If you find from the testimony that the deceased’s foreman was personally in charge of the work, and that he directed deceased to go under the car, and assured him that he, the foreman, would protect him, you will be warranted in finding that deceased was not negligent in going under the car without posting a signal flag, provided you find that deceased went under said car relying on the promise of McDonald to protect him. ’ ’

Other prayers for instructions were granted at the instance of the appellee to the same purport, telling the jury in effect that, notwithstanding the blue flag rule of which Steel had knowledge, he had a right to obey the direction of his foreman and to go under.the car and do the work, relying upon the promise of the foreman to protect him, and that if he went under the car in obedience to the foreman’s direction and relying upon his promise, and was injured as a result, that their verdict should be in favor of the appellee. These instructions were all erroneous, because they, in effect, announced the doctrine that, notwithstanding the rule promulgated by the company for the protection of the car repairers required that they should protect themselves while under or on cars repairing the same, by putting out a blue flag, their foreman in charge would have the right to abrogate or suspend such rule, or to ignore same, and if he did so and the workmen under him were injured while obeying his instructions, upon the promise that he would protect them from danger, the company would be liable on account of the negligence of its foreman, and the employee would not, under such circumstances, as matter of law, be guilty of contributory negligence.

The uncontroverted evidence shows that the deceased had knowledge of the above rule of the company.

(2) A contract between the master and servant involves certain reciprocal duties which, if not expressed, are clearly implied, and grow out of the relation between them. Among others on the part of the master is the duty to exercise ordinary care to furnish his servant with a safe place to work, and to this end the master may adopt reasonable rules and regulations for the protection of the employees while in the performance of their duties. And it'is the duty of the servant to exercise ordinary care for his .own protection, and in so doing to obey the rules which the master has adopted and promulgated to insure the safety of the employee.

Mr. Labatt, in his great work on Master and Servant, speaking along this line, says: ‘ ‘ The duty of the servant to comply with the rules which the master has published for his guidance may be referred to the broad principle that the rules, if reasonable, may be assumed to indicate the methods of work which experience has shown to be calculated to furnish the best chance of safety, under the circumstances, both to the servant himself and to his fellow-employees ; and that a breach of those rules must, by consequence, charge him with that culpability which the law infers from the doing of a certain act in an unnecessarily dangerous manner. But the duty may be, and more commonly is, referred to the conception that an agreement on his part to obey the rules may be implied from his having entered or remained in the employment with a knowledge of their provisions.” 3 Labatt on Master & Servant, page 3581, section 1281.

Again he says: “The servant’s agreement is that, whatever may have been, apart from the rule, the standard of proper care under the circumstances, the rule itself is to define that standard, as between the servant and his master, as long as the former remains at -work.” Id. p. 3608, sec. 1284.

Speaking of the result of a violation of the rule, the same learned author declares: ‘ ‘ The accepted doctrine is that, if the evidence clearly shows that the injury complained of was caused by the servant’s violation of a rule promulgated for the protection of the class of employees to which he belonged, under such circumstances as those attending the accident, a court is justified in declaring him to have been, as a matter of law, guilty of contributory negligence, provided that the rule in question was valid and reasonable; that its observance under the given circumstances was possible without infringing another rule or duty of paramount obligation; that its contents were known to him, either actually or constructively; that it had been neither abrogated, nor suspended, nor waived at the time when the injury was received, and that he was chargeable with notice .of the fact that the conditions which the rule was framed to meet existed at the time when the injury was received.” Id., p. 3581, sec. 1281.

(3) It is undoubtedly the doctrine of our own court that the violation by the servant of an unambiguous rule of the company for his protection, and of which he had knowledge, acting independently and not under the direction of his foreman or superior in work, is negligence per se and may be so declared as a matter of law. Snellen v. K. C. So. Ry. Co., 82 Ark. 334; Young v. St. L., I. M. & S. R. Co., 100 Ark. 380.

In St. L., I. M. & S. R. Co. v. Stewart, 124 Ark. 437, 448, it is said: ‘ ‘ The effect of a violation by an employee of the rules prescribed for his own protection is too well settled by'decisions of this and other courts to call for citation of authorities. If the rule wás violated by plaintiff, it constituted negligence per se which-will prevent his recovery of damages except such as are allowed by the Federal statutes for the comparative proportion attributable to the negligence of the company.”

(4-5) Now this rule was made for the protection of car repairers while on or under cars, and the rule in express.terms says to each workman “protect yonrself with blue signals.” So the servant is informed by the rule itself that the duty of putting out the blue flag is not one that the master has delegated to or imposed alone upon the foreman who is present and directing the work to be done. The rule is intended for the guidance of each and all the employees, and only the master himself or his vice principal, who stands in his stead for the express purpose of making, abrogating, suspending or waiving the rules, has the power to either make them or set them aside. The foreman of a gang of car repairers has no such power. If the conditions for which the rule was framed existed at the time the work was being done, it was his duty, as well as that of the workmen actually engaged in the work of repair, to see that the rule was observed. He had no power to abrogate the rule, nor to suspend its enforcement or waive obedience to it.

It was said in the case of St. L., I. M. & S. R. Co. v. Stewart, supra: “The yardmaster had no authority to make or unmake those rules which had been promulgated by the company for the guidance of all its servants, but it was his duty to enforce them, or to report infractions thereof.”

It was the duty of the foreman of the repair gang, not to suspend or waive the observance of this rule, but to see that it was obeyed. “It would lead,” says the Supreme Court of New York, “to the establishment of an exceedingly unsafe rule to hold that a gang boss over forty or fifty men could, without direct authority from the company, change the safe and proper rules in pursuance of which the work in the repair yards was conducted, and direct workmen to prosecute their labors under cars standing on tracks other than the regular duly protected repair tracks.” Keenan et al. v. N. Y. L. E. & W. R. R. Co., 145 N. Y. 190, 195.

On the former appeal it was said: “There does not appear to have been such testimony of a continued violation of the rule known to and acquiesced in by the master, as would abrogate it. ’ ’ There was no additional testimony to the effect that the foreman of the repair gang or others, or the workmen themselves, had so habitually violated the rule as to have brought home to the master the knowledge of such violation or to lead the servant to believe that the master had acquiesced in such violation, and that therefore the rule had been abrogated, or that the foreman was vested with power to suspend, for the time being, the observance of the rule.

But, while the court erred in declaring as a matter of law that Steel was not guilty of contributory negligence if he went under the car without putting out the blue flag, provided he did so relying upon the promise of his foreman to protect him, it does not follow that the court should also have granted the prayers of appellant for instructions which declared that Steel, under the circumstances mentioned, was guilty of contributory negligence as a matter of law, and that he could not recover.

In St. Louis, I. M. & S. Ry. Co. v. Blaylock, 117 Ark. 506, 516, we said: “When the men were working in gangs out in the yard the rule was obeyed when the foreman put out the blue flag. ’ ’

Where the conditions exist calling for the putting out of the blue flag, the rule is obeyed, to be sure, when any of the employees of a gang or the foreman, put out such flag so as to give warning to all other operatives of the danger to the employees engaged in the repair work.

(6) The testimony shows that when Steel was directed by the foreman to go under the car to make the repairs he said something to the foreman about whether or not they should have a flag up and the foreman told him to go ahead under there, that they were in a hurry, and he, the foreman, would protect him. This testimony made it a question for the jury to determine as to whether or not Steel was guilty of contributory negligence in going under the car, if he did so, relying upon the promise of the foreman to watch for and protect him. The only protection in compliance with the rule, of which both Steel and the foreman had knowledge, was the placing of the blue flag. Therefore, when the foreman assured Steel that he would protect him, it was a question for the jury to say whether or not Steel, in the exercise of ordinary care, had the right to rely upon this promise as meaning that the foreman would give him that protection that the rules of the company required. According to one witness, the foreman said he “would protect him,” and another that he “would watch out for him.” The jury might have found that Steel could have understood from this language that the foreman meant to protect and watch out for him. Considering the place, the character of the work he had to do, and the time necessary to accomplish the same, it was for the jury to determine whether or not Steel was guilty of contributory negligence in going under the car in obedience to the direction of his foreman and in reliance upon his promise for protection. The court should not, as a matter of law, have declared that Steel was or was not, under the testimony in this record, guilty of contributory negligence.

The court granted appellee’s prayer for instruction which, in effect, told the jury that if they believed from the testimony that Steel was injured while engaged in the performance of his duty under a car on one of defendant’s tracks at Benton, and that while so engaged the car upon which he was working was struck by moving cars of appellant, resulting in his injury, that this was prima facie proof of negligence on the part of the defendant, and refused appellaiit’s prayer for instruction telling the jury, in effect, that the burden was upon the plaintiff to establish the negligence of the train crew by a preponderance of the testimony. The court erred in this ruling.

(7) On the second trial of the case the appellant amended its answer, setting up facts sufficient to bring the case within the Federal Employers’ Liability Act, passed and approved April 22, 1908. That act, therefore, governs the case. Since its passage all State laws upon the subject have been superseded. “It covers and1 overlaps the whole State legislation, and is therefore exclusive.” Fulgham v. Midland Valley R. Co., 167 Fed. 660. See also 2 Employers’ Liability Cases, 223 U. S. 1, 55; Seaboard Air Line Ry. v. Horton, 233 U. S. 492; Michigan Cent. R. R. Co. v. Vreeland, 227 U. S. 59; M., K. & T. Ry. Co. v. Wulf, 226 U. S. 570; Thornton’s Federal Employers’ Liability Act, pp. 34 et seq. 39 inc., and numerous cases cited in note; Roberts’ Injuries Interstate Employees, pp. 34 et seq. 43.

(8) We do not know of any case, and are not cited to any in the excellent briefs of counsel, where the United States Supreme Court has passed upon the precise question as to whether or not the rule as to the presumption of negligence and as to the burden of proof in cases where the injury is shown to have been caused by the running of trains will be controlled by the State statute on that subject. But as the Employers’ Liability Act contains no provision to the effect that a presumption of negligence arises from an injury caused by the running of trains, we think the burden should be left where it rests under the decisions of the United States Supreme Court in such cases, and that the question as to whether or not the negligence upon which liability is predicated exists must be determined without reference to the State statute upon the subject.

Appellee relies upon Minneapolis & St. L. R. Co. v. Bombolis, 60 Law Ed. (U. S.) 961. In that case the Supreme Court of the United States held that the lia-. bility of the carrier under the Federal Employers’ Liability Act could be determined in the State court where' the cause was tried by a jury constituted and reaching its conclusion under the procedure by the State statute, which authorized five-sixths of the jury, after the cause had been under submission twelve hours, to return a verdict that should have the effect of a unanimous verdict. The court held that the seventh amendment to the Constitution of the United States, requiring a unanimous verdict by a jury according to tbe course of tbe common law, i. e., a unanimous verdict by a jury of twelve, did not apply and supersede the statute of tbe State prescribing what was necessary to constitute a verdict. But tbe doctrine of that case does not have any application here for tbe reason that tbe issue there decided related to a mere matter of procedure as to whether a verdict could be rendered by a less number than twelve. Here tbe issue involves a matter of substantive right in defense to tbe cause of1 action under the Federal law, namely, that tbe burden rests upon tbe employee who alleges that be was injured through tbe negligence of bis employer to prove it. This right can not be lessened or destroyed by a State statute, tbe effect of which, as construed, is to declare that tbe carrier is liable when it is proved that tbe injury was received in tbe running of a train, and that upon such proof tbe injured employee is entitled to recover unless tbe carrier shows that there was no negligence.

For tbe sake of uniformity, tbe decisions of tbe Supreme Court of tbe United States should and must control in determining tbe issue of negligence where tbe Employers’ Liability Act governs; for, as is said by Mr. Boberts, ‘ ‘ Certainly there must be some controlling authority in determining negligence under this act, and if these questions are left to be determined according to tbe admittedly conflicting decisions of tbe courts of tbe several states, whose rulings are paramount and exclusive in their own jurisdiction, tbe question as to when a carrier is negligent under tbe Federal statute would become a matter of tbe geography of tbe states and not of one supreme law applying uniformly within, its exclusive domain.” “Such discrimination,” be continues, “would defeat one of tbe main objects of tbe national statute — one uniform rule of liability in all tbe states where a carrier by railroad is engaged in interstate commerce to its servants while employed in such commerce.” Roberts’ Injuries Interstate Employees, pp. 37, 38.

In Seaboard Air Line Ry. v. Horton, supra, the court, .commenting upon the trial court’s instructions, said: “In these instructions the trial judge evidently adopted the same measure of responsibility respecting the character and safe condition of the place of work and the appliances for the doing of the work that is prescribed by the local statute. But it is settled that since Congress, by the Act of 1908, took possession of the field of the employers ’ liability to employees in interstate transportation by rail, all State laws upon the subject are superseded.”

In other words, the trial court, in the above case, framed its charge so as to determine the issue of negligence upon which the liability of the railway company depended in conformity with the laws of the State. The Supreme Court of the United States held that this charge was erroneous, and reversed the cause, holding that the charge was not in conformity with the intention of Congress in passing the Employers’ Liability Act.

And in the later case of Southern Ry. Co. v. Gray, 241 U. S. 333, 338-9, the Supreme Court of the United States says: “As the action is under the Federal Employers’ Liability Act, rights and obligations depend upon it, and applicable principles of common law as interpreted and applied in Federal courts. Negligence by the railway company is essential to a recovery; and there is not a scintilla of evidence to show this under the most favorable view of the testimony urged by counsel for defendant in error.”

(9) From the trend of these decisions, we believe the correct doctrine under the Federal Employers’ Liability Act is to hold that a prima facie case of negligence against a railway company is not established merely by proof of an injury in the operation of trains.and that such •proof does not shift the burden upon the railway company to show that it was not negligent; but, on the contrary, plaintiff must show the actual existence of negligence on the part of the agents or employees of the carrier. Under the State statute, as construed by us, negligence is presumed upon proof of the injury which occurred in the operation or running of trains. Kirby’s Digest, § § 6607 and 6773; K. C. Sou. Ry. Co. v. Davis, 83 Ark. 217; St. L., I. M. & S. Ry. Co. v. Steel, 87 Ark. 308; St. L., I. M. & S. Ry. Co. v. Fambro, 88 Ark. 12. But such is not the case, as we understand it, under the Federal Employers’ Liability Act, since that act contains no provision to that effect. South Covington, etc., Ry. Co. v. Finan, 153 Ky. 340, 155 S. W. 742; Charleston & W. C. R. Co. v. Brown, 79 S. E. (Ga.) 932.

(10) It is clear that in the absence of our statutes the burden of proof in this case would be the same as in all other cases, requiring a person who alleges damages on account of negligence to prove it. As these statutes have no application under the Employers’ Liability Act it follows that the instructions of the court applying the State statutes to the facts of this record were erroneous.

In the recent case of St. Louis & S. F. Ry. Co. v. Coy, 113 Ark. 265, 284, we said: “On the question of the burden of proof the lex fori governs,” and quoted from Prof. Minor (On Conflict of Laws, p. 486) as follows : “But if the rule prescribed by the lex delicti with respect to the defendant’s negligence is a mere rule of evidence, such as rules respecting the burden of proof touching negligence, the lex fori will govern, not the lex delicti, in accordance with the general principle , that rules of evidence relate to the remedy, and like all matters of that character are regulated by the law of the situs of the remedy.”

But in the above case the Employers’’Liability Act was not involved, no question as to the effect of an exclusive law of a superior jurisdiction was at issue, and the rule there stated has no application here for the reason that the Employers’ Liability Act, with respect to the employer’s negligence, is not a mere rule of evidence relating to the remedy. . It creates liability only where negligence is proved, and where negligence under that act is charged the employer has the substantive right in defense to deny liability, which places the burden upon the plaintiff to prove it.

(11) The doctrine of “res ipsa loquitur” has no place in this case, and the authorities cited in the exhaustive brief for appellee on that question are not in point. The injury and the circumstances attending it were not so unusual and of such a nature that the injury could not well have happened without the company being negligent, nor was the injury caused by something connected with the equipment or operation of the road over which the company had entire control. See Choctaw, Okla. & Gulf R. Co. v. Doughty, 77 Ark. 1, and cases there cited. On the contrary, the duty of observing the rule which would have prevented the injury to Steel was entirely under the control of Steel and his foreman while the repair work was being performed. We can not agree, however, with counsel for .appellant that the trial court should have declared as matter of law that the failure to observe the blue flag rule which resulted in the injury was solely the negligence of Steel. The foreman was the fellow servant of Steel in the matter of promising to protect him while he was engaged in doing repair work under the car, and the jury were warranted in finding that the failure of the foreman, after promising to protect and watch for Steel, was negligence on his part for which the carrier would be liable under the comparative negligence rule of the statute. It was strictly within the scope of the employment of the foreman, while directing the car repairers, as well as the men under him, to see that the blue flag rule was obeyed.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

* 17. You are instructed that even though you should find that Rhad Steel received an injury, and even though you should find that said injury was the result of negligence on the part of the defendant or some of its employees, and even 'though you should further find that because of said injury, that deceased was so weakened and lowered in vitality that he was more susceptible to disease and less able to resist it than he otherwise would have been, still you are instructed that, notwithstanding these facts, if you believe from the evidence that the deceased died of typhoid fever, then there can be no recovery for his death, and this is true even though you may believe from the evidence that his death would not have resulted but for his lowered vitality and weakened condition. (Reporter.)