824 ST. LOUIS-S. F. RI% 'Co: v. M6CommoN. [187 ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY V. McCown/ION. 4-3055
Opinion deli-Vered July 10, 1933. 1. MASTER AND SERVANT—ASSUMED RISK.—An employee in a wrecking crew, who complied with a negligent order of the roadmaster in disconnecting a bent rail, could recover for his injuries unless he knew or by ordinary care might have known of the peril of compliance with such order or the danger was so obvious that a person of ordinary care would have observed it. 2. MASTER AND SERVANT—PERSONAL INJURIES—EVIDENCE.—Evidence held to support a verdict for an employee whose leg was injured on the rebound of a bent rail which his superior ordered him to release. 3. DAMAGES—WHEN NOT ExcEssrvE.—An award of $20,444 to an employee 48 years old, and earning $117 a month, was not excessive where his leg was severed above the ankle, causing intense suffering and rendering him unable to work. Appeal from Crawford Circuit Court ; J. 0. Kin-eamnon, Judge ; affirmed. E. T. Miller and Warner & Warner, for appellant. Partain & Agee, for appellee. HUMPHREYS, J. This suit was instituted by appellee against appellant in the circuit court of Crawford County under the Federal Employers' Liability Act to recove
ARK.] ST. Louis-S. F. R y. CO. v. Commox. 825 da ` mages for personal injuries received while engaged in interstate 'commerce, through the alleged negligence of its roadmaster in ordering appellee to disconnect or release a bent, twisted and sprung rail in the main track ' uflon the assurance that it was safe to do so. Appellee filed an answer, denying the alleged negligence on the part of its roadmaster; and pleading the affirmative defenses of contributory negligence and assumed risk by appellee. The cause was submitted to the jury Upon the issues joined and the testimony adduced by the respective parties, which resulted in a verdict and consequent judgment in favor of appellee for $20,444, from which is this appeal. The main contention of appellant for a reversal of the judgment is that the facts are insufficient to support the verdict and judgment. The testimony introduced on behalf of appellee tended to show that he was called about' midnight by E. L. Ayles, appellant's roadmaster, to get his crew and come to Smeltzer switch near Van Buren for the purpose of clearing and repairing the track, which had been torn up by a wreck of appellant's south-bound passenger train No..712, in which wreck the engine was turned over and the engineer and fireman were killed and the train and portions thereof had . been derailed; that the rOadmaster had arrived at the scene of the wreck an hour or two before appellee, and had made an inspection of the situation, and had assuthed full control and charge of clearing up the wreckage and repairing ' said track; that, upon ap-pellee's arrival, he proceeded with the work of Clearing up said wreckage under the immediate direction and orders of the roadmaster ; that, while checking up the number of ties that would he needed to repair the track, he was ordered by the roadmaster to disconnect a bent, twisted and sprung rail at the south end of the wreck from a rail in the main lines, who told him exactly how to do it ; that he asked the roadmaster whether there would be any danger standing in the position he must stand t6 detach the rail and was assured by the road-master that the bent, fwisted and sprung rail would.fly
826 ST. LOUIS-S. F.. Ry. Co. V. MCCOMMON. [187 out to the east_when detached, which would be away from him; that he aid what he was told, relying upon the superior knowledge of the roadmaster ; that the road- master had had experience in clearing up . wrecks such as this during his six years' service with appellant; that he had never had any experience with such a situation as this, and had no knowledge or information except that given him by the roadmaster as to which direction the rail would‘spring when detached ; that, as soon as he pried the rail apart under the immediate direction of the roa.d-master, the detached rail swung to the east hut instantly swung to the south and back to the west and practically cut his leg off, abovethe ankle; that he did not realize-the peril incident to releasing the rail. This is a statement, .in substance 6f the testimony introthibed by appellee, which was contradicted by the testimony introduced by appellant. , . Based upon this conflictin g - testimony, the court instructed the jury to the effect that, if it found that appel-lee complied with the direct order of the roadmaster in disconnecting the , rail, and if it. found that the, order was a negligent one under the circumstances, then appellee would be entitled to , recover unless appellee knew of the peril of complying therewith or had equal means of knowing it,. or . by the ' exercise , of ordinary, care_ might have known-it, ;or unless the ;danger, was so - apparent and obvious that a person . of ordinary care and prudence should. have observed ,and seen it..„,: i The law , thus declared was correct as applied . to:the facts, and the testimony introduced, by . appellee, and, if believed by: the jury, was sufficient to .support the judgment. ' • Appellant contends, however, that the verdict was excessive. . Appellant was 48 years of age and was earning $117 a month when injured, and at that time was in perfect health. He was injured at 4:10 A. 3 a . . and suffered intense anguish and pain until 7 :00 A. m., when his leg was amputated five inches above the ankle. He remained in the hospital for 20 days and was confined -to his- bed for two weeks after returning to his home.. He has been unable to do any work since his injury; and is very ner-
„ vous and cannot sleeP at night. He is 'still gii' fferiiik intense pain. He cannot walk On his'artificial limb Without pain . and cannot use it for more than a half • a day at a time and cannot work when he has it on. • -There is testimony tending to show that the flesh pad On the end of his stUmp is not sufficiently thick so that he can wear his artificial limb withoUt pain and that probably another amputation may become necessary before. this can be remedied,. . • . • When. alli these, things are, considered in connection with his suffering; mutilation: of body i • and -consequent humiliation . , 'we cannot say, as - a matter . of. law that • the verdict is excessive or that. it was inspired :by prejudice. NO instruction on comparative , :negligence ,was requested by appellant, so the verdict cannot be rednced,on, that account,, even if the 'testimony reflected :any . negligence on:the part of appellee. •, No error appearing; the ,judgment , is 'affirmed: - Justices SMITH and ,NCHANEY are. of -the opinion that the. judgment is excessive and should.be reduced. •
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