816 _ C., R. I. & P._RY. CO–V–ADAMS. _ [187__ CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY V. ADAMS 4-3048 Opinion delivered July 3, 1933. 1. MASTER AND SERVANT PEDERAL EMPLOYERS' LIABILTTY ACT—PRESUMPTION.—In an action under the Federal Employers' Liability Act for an employee's death, a State statute imposing liability
ARk.] C., R. I. & P; RY. CO . v. ADAMS. 817 on trainmen to keep a lookout and creating a presumption of negligence in certain cases, held inapplicable. 2. MASTER AND SERVANT—DISCOVERED PERIL—EvIDENCE.—E vidence held to sustain a finding that decedent employed in interstate coinmerce was niegligently killed by a train after his peril was discovered. 3. MASTER AND SER VANT — CONTRIBUTORY NEGLIGENCE.—In an action under the Federal Employers' Liability Act, only negligence of the employee which proximately contributed to the injury complained of is to be considered. . 4. TRIAL — NECESSITY OF REQUEST FOR IN STRUCTION.—Where, in an action under the Federal Employers' Liability Act for negligent killing of an employee defendant requested no -instruction to the jury to diminish the damages in proportion to decedent's negligence, no error was committed in failing to give such instruction. Appeal from Perry Circuit Court ; Marvin Harris, Judge ;, affirmed. STATEMENT BY THE COURT. This appeal is prosecuted from a judgment for damages for the killing of its watchman at the cut on its railroad track near Ledwidge after his perilous position was discovered bY the other employees. The railroad runs through a narrow cut in the mountain about 300 feet west of the station at Ledwidge -and on the south side of the track the wall of the cut is almost perpendicular and about 100 _to 200 feet high and on the north side the wall is not so high, but both walls are virtually perpendicular. The wall of the cut on,the south side extends a little further west than that on the north side. It was the duty of the watchman to patol the track through :the cut to see that itlwas clear of obstructions and to see that approaching trains were properly notified of any boulders or rocks that fell 'on the tracks. On the morning of the occurrence, Johnson went on duty about 7 o'clock, and, while talking with- the watchman at the east end of the cut, who was, being relieved from duty, he heard a passenger train approaching. .1Ie started through the cut to Meet the train, and near the West end of the cut he was struck by the train and in-. Stantly killed. He was employed in interstate commerce,
818 C., ICI. & P. lis(. CO. v. 7 ApAms. - -[ 187 and the suit was brought under the Federal Employers' L ... i ,: a bilit . y Act The case Was Submitted to the jury on the sole ques-tioir of whether, the fireman of the approaching train saw the decedent's position of peril in time to avoid striking him by . the use of ordinary care or failure to use such care. Many witnesses testified about the width of the cut, or its . narrowness rather, and that the clearance was in-• sufficient for one to be in the cut when a train;was passing - without injury. • . Appellant states in its brieL . • " The testiniony of plaintiff's witnesSes was confined to an effort to show that there was not •sufficient'room in the cut for a man to walk through in , safety while 'a train was passing; and that the fireman On a train approaching from the , west could have seen a man in the cut seyeral hundred feet :before reaching the cut. It may be conceded that the testimony.'on.- these two points, if material, was sufficient to, go,to. the jury.' ' A few 'minutes • after 7. o'clock on the morning of :-April i; 1932, :the deceased, employed, as a watchman, started west ' through , the .cut from a shanty at the east :end thereotto take, his :position near the end of the trestle, over Merrick.Hollow. : This:position was , on ,the ,south side ok the, track l and beyond Ahe,west end of .the south wall ofthe ,cut. .0is. purpose ! _was_ . to ,signal,ithe train through the cut . He ine yer ‘ reached the place where he invariably. stood to give the signal. After hewas struck he was' found 88 feet,from his .accustomed , place, ;and, if he was struck , 29-.feet back in the cut as appellee contends, he was 117 feet from his usual station. The fireman testified that he saw th ,. e decedent walking astride the north rail of the track in the Cut,as soon as the train came in Sight of the cut.' 'this distance was varlOusly 'estimated ' tO be 'from 750 . to 1,200 feet ; that he eontinued to walk along the north rail of the track until he vi'r,s within a few feet Of the handcar Set-6ff when he lifted-his left foot Over the rail and 'Walkedion:the end of the ties until setoff Wasreached, and he tlieh Stepped
ARK.] C., WI. Sz, P. R,)T. Co. V;:ADAMS. .819 up on the set-off or jigger for the handcar, looking .at the train all the time until it:struck him. . Witness said he immediately notified . the engineer, who could not see the man on the track around. the , curve, to .try[to . stop the train which he succeeded indoink iri about a train lenkth. That ihe engineer , could-not have stopPed , the train after he 'notified him in , tithe to have preVented the decedent.' • ' The PP gulee T. , tP.stified,.that when the fireMan began eo. niake signals f6 hiin'he did not Understand the ' signal, it not . being one in use,, but , he.began to try, to ` top the train, .althoukh he did not dO al1he: could have done to stoP: it, not havink , put the bra j ie in emergenoy. Th e train„ was_estimated to be running at 4: to 5 mi1es per honr in the cut, the maximum speed permitted, being 20 miles per, hour; and there was some testimony tending to, show tha:t.it could haye been stopped within 150 feet at the , maximum speed and ju from .50 to 60 feet at the lower, speed. . , , - Wiley, a witness for .the plaintiff, testified that Jobn-son came on at 7 o'clock, talked with him . At. the .shaa about 2 or 3 minutes, as . .usual, and , that the shack is at the east end of the cut , on the north side of the track. They heard the train whistle west of the cut, and JOhnson got up and started through;the Cut, the watchman being suri-posed to meet the pastbounA trains:on , the west and the westbound trains .. on . the east, of the cut. This was an eastbound train. ,Witness said: " " The train, ran up and stopped at the . door. I Was in the shack, and some one .Of the trainmen , said.;, , 'We have killed that old .Watehnian down there.' * * * I came_ out and went down there;.and looked , at him. He Was on the north side of the:track back iii the ent a WaY g -+PrOhably 15 feet." He was back hi 'the , cut 29 feet Tioni the .`jikgei:'.. He ,was baCk in ( tile cut a distance pf lb feet from' the ;end Of ' the rOok'wall:" Witness said the train was 'not nihninivery'fagtabbilt 4 or 5 Miles per hOur. • j, : The court instructed, the ,jnrY; One InStrUCtion coin , plained of, and fidna the judginenfOn Verdict this appeal i s prOsecuted: .
- 820 C.,-R. I. & P. R y . CO. ?). ADAMS. [187 H. T. Harrison and Thos. S. Buzbee, for appellant. W. R. Donham, for appellee. KIRBY, J., (after stating the facts). Only two questions are raised by the appeal, the sufficiency of the . evidence to support the verdict, and whether the court erred in instructing the jury as to the measnre of damages. The suit being brought under the Federal Employers' Liability Act, there is no presumption of negligence, and no duty on thecpart of the trainmen to keep a lookout as provided for by the statutes of Arkansas, which ,do not apply. C. M. (E St. Paul Ry. Co. v. Coogan, 271 11. S. 472 ; St. L. S. F. Ry. Co. v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102. In the latter case it was said that our statute, § 8562, Crawford & Moses' Digest, has been superseded in cases of this kind The rule of the Federal courts on the burden of proof in cases of this character controlled by the Federal Employers' Liability Act is • stated by the Supreme Court of the United States in Patton v. Texas rt Pacific Rd. Co., 179 U. S. 658, 21 S. Ct. 275. See aIso Penn. R. Co. v. Chamberlain, 288 U. S. 333, 53 S. Ct. 391. The testimony shows that appellant's fireman discovered the watchman in the cut a long way off, 750 feet or more, that he recognized him and was given the high sign by the watchman. That he continued to observe him without appearing to think he was in any position of danger or peril until shortly before he stepped outside the rails of the track on the other side about the time he reached the raised platform or jigger,. a place fixed by .the side of the track for storing the handcars, before giving the engineer the stop signal. • _ Th - e engineer said he did not understand the signal to stop given by the fireman, that it was not in use as a signal, but could tell from his excitement that something was _wrong, and he began to stop the train before he reached and struck the watchman, whom he could not see from his place in the cab. - The engineer evidently did not understand the significance of the signal, since he did not apply the brake in emergency as he could have done; which might have
ARK.] C., R. I. &. P. 1117.. CO. v. ADAMS. 821 reshlted in stopping the train before the injury, although the firenian said it was not possible to stop the train after he gaVe the stop signal in time to avoid striking the watchman. The watchman stepping outside of the track and then on to the handcar platform might have caused the fireman , not to appreciate the danger and the necessity for giving the signal sooner ; and certainly the engineer cotild not have known about the conditiOn as he could not ee ' decedent on th . e track at all. The train operatives, however, saw the decedent on the track long before there was any danger to him from the place occupied an4 necessarily were not negligent in not sooner giving the signal anThattempting to stop at that time, ,since it was the duty of the watchman to go through the cut, as he was doing, io the other side, the west side, that he might, flag the oncoming train as it ,came east through the cut. As soon as he perceived.or concluded that the decedent was in a place of danger which he could not likely escape from, he gave the engineer the signal and an effort was made to stop the train in time to avoid the injury, although the fireman said he did not believe that the train could have been stopped after he called the engineer's attention to the danger and, the necessity : for its being stopped.- The fireman said, however, the decedent had reached : the platform and was apparently out of the place of danger, and he assumed that he could and would escape, when he concluded otherwise and gave the signal to stop. He said the decedent came to a stop after getting on to the platform, and it may be that he thought he was out of danger and that tbe fireman concluded that such was the case until he finally gave the signal,to stop. the train. Since the body was found 29 feet : from the .jigger platform back down in the cut after being strubk, 'and where the . watchman was killed, : the jury evidently did not believe the fireman's ' statement about his having reached the platform and §tanding thereon before the train reached him. In other Words„they-may have believed that the watchman was struck where he fell and before he had ever reached handcar platform, a place of
822 C., I. &-P. RT. s CO. v. -AD-ms. [187 safety from which he might have escaped the danger; and that. the fireman was negligent in not sooner notifying the engineer of his perilous position in order that the injury might have been averted. Under such circum-, stances we cannot say that there , is not: sufficient substantial testimony to support the verdict. It is next insisted .that the court , erred in giving . ap-pellee's requested instruction No. 4 on the measure ,of damages, since the case was ' one brought under the Federal Employers' Liability Act, and that the court should haVe instructed the jury to diminiSh the damages in proportion to the 'negligence attributable to the decedent. The appellant requested no such -instruction however and liability Of the appellant -to the payment of darnages for the injury in question was asserted solely on the ground of failure to eicercise ordinary care to prevent the injury after his peril was discovered. • It seems that only such negligence as proximately contributes to the injury is to be considered, although the injury occurred in a State under the laws of which any • negligence on the ;Part of the person -injured, even rernotely contributing tO -the injUry, is 'taken into aCcount. The negligence to be considered in order to rednce -recovery must be "causal." Ill. Central R. Co. v. Porter, 207 Fed. 311 ; Seaboard Air Line Ry. Co. V. Tillman, 237 U. S. 499, 35 S. Ct. 653 ; K. C. S. Ry. Co. v. Sparks,144 Ark. 227, 222 S. W. 724; St. L. S. W. Ry. Co. v. Simpson, 184 Ark. 633, 43 S. W. (2d) 251. This last case it is true was reversed by the United States Supreme Court, (286 U. S. 346, 52 S. Ct. 520) but it was on the theory that the perilous position of the decedent was never discovered. See also Gray v. So. Ry. Co., 167 N. C. 433, 83 S. E. 849; Id., 241. U. S. 333, 36 S. Ct. 558; Barnes v. Red River ce G. Ry. Co., 14 La. App. .188, 128 So. 724; Hamilton v. Chicago, B. ce 0. Ry. Co., 211 Iowa 924, 234.N. W. 810. . . We do not regard our case of N. P. Rd. Co. v. Skip-, per, 174 Ark. 1083, 298 S. W. 849, • s contradictory of these above cited authorities. No error was committed, in giving the instruction complained of, and on the whole case the record does not disclose any prejudicial error, and the judgment must be affirmed. It is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.