ARIC] BALDWIN V. SEARS. 2Y57 BALDWIN V. SEARS. • 4-4160
Opinion delivered February 1.7, 1936. 1. MASTER AND SERVANT--FEDERAL SAFETY APPLIANCE Acr.-- In an action by a brakeman injured through a grabiron pulling loose while attempting . to board a moving tank,car . engaged in . interstate commerce, the carrier was liable, although the defective condition could not have been discovered by 'ordinary care; since the Federal Safety Appliance Act (45 USCA, §§ 51 :59) imposes absolute liability for Violation thereof. 2. MASTER AND SERVANT—FEDERAL SAFETY APPLIANCE ACT—INSECURE GRABHOLD.—Under the Federal Safety Appliance . Act (45 USCA) where , a railway company accepts a car belonging to a third person into its train, it has the same responsibility of insPection as if it owned the car: 3. MASTER AND SERVANT—ABSTRACT INSTRUCTION.—In an action by a brakeman . injured through a grabiron . pulling loose while he:was attempting to board . a moving car, an instruction.that the master would not be liable if a nut holding the grabiron had been' removed after inspection and before sufficient time had elaPSed to permit discovery, held properly refused where there was no eV-. dence that the nut had been removed:
258 BALDWIN V. SEARS. [192 4. MASTER AND SERVANT—ASSUMED RISK .—In an action against an interstate carrier by a brakeman injured while attempting to board a moving car through a defectively fastened grabiron coming loose, an instruction on assumed risk was properly refused. MASTM AND SERVANT—CONTRIBUTORY NEGLIGENCE.—In an 'action for liability under the Federal Safety Appliance Act, an instruction on contributory negligence was properly refused. 6. MASTER AND SERVANT—FEDERAL SAFETY APPLIANCE ACTS.—The Federal Safety Appliance Acts impose upon carriers .engaged in interstate commerce absolute duties which are not discharged by reasonable care. 7. MASTER AND SERVANT—DEFECTIVE APPLIANCES.—A carrier is liable for injuries to employees from use of substandard or defective appliances when used in interstate commerce, although the carrier does not own the equipment. APPEAL AND ERROR—CONCLUSIVENESS OF VERDICT.—Where the extent of damage in a personal injury suit depends upon the conflicting testimony of expert witnesses, the verdict of the jury is conclusive. Appeal from Clark Circuit Court; Dexter Bush, Judge; affirmed. Action by Tim A. Sears against L. W. Baldwin and another, trustees of the Missouri Pacific Railway Company. Defendant appeals from an adverse judgment. B. E. Wiley and Henvy Donham, for appellants. Pace & Davis, J. H. Lookadoo and Tom W. Camp-bell, for apPellee. .• BAKER, J. The complaint filed in this case alleges an injury received • by the -Plaintiff while employed as a brakeman 'upon one of the freight trains operated by the appellants, ivho were engaged in interstate coMmerce, and the:cause of action alleged was one that arose under the Federal Employers' Liability Act of 1908, as amended in 1910. • The allegation is to the effect that on the 9th day of December, 1933, the appellee herein was employed as such brakeman upon a train running from El Dorado to North Little Rock, and, as the train was leaving Cam-den, after having stopped to take water, and while running frOm 10 to 15 miles an hour, the appellee attempted to catch and get upon an oil tank car, being car LUX 870, and that ' a grabiron pulled loose from the running &lard on the left side at the head end of the car, causing
ARK.] BALDWIN v. SEARS: 959 the appellee to fall from the Car, striking his hips and back of 'his head on the dump on the side 'of the track, and throwing hini in the ditch below: The further allegations are descriptive of the method of the fastening of the ends of these grabirons by . the insertions of bolts throUgh the running boards that surround the tanks, and npon -the bottom • sides of the running'boards the bolts go through•holes in the ends of the, grabirons and are held by nuts. One of these nuts had been lost from a bolt, so used in holding the end of the grabiron, and, as- the appellee attempted tO climb upon the train, • one end Of the grabiron came loose, cauSing bim to fall. • - • - The record is voluminous', but the fact-is not seriously disputed that : whatever injury the appellee suffered was caused in the manner described. The :accident occurred in the early morning 'hours before daylight. No. one was near, and the appellee was found after the train had 'gone, or; at, least, a short time afterwards he ap-, peared at the depot where he•:says he was taken by tANT colored men who assisted him in getting. to that place. • A larger part of the testimony in'this record relates to the fact• of the injury and to the extent thereof. The 'first proposition presented upon apPeal .and brought here is that the court erred-in refusing:to quash the jury panel. This matter will be passed without dis4 cussion, •because the question was' settled . in the :case of 4merican Refrigerator Transit Co.-x. Stroope,191 Ark. 955, 88 S. W. (2d) 840. This is the •same juky, drawn by the same jury commissioners whose eligibility was decided in that ease. The question Was settled there. The .Writer was not in . accord with that. opinion; but' the que8:- Lion will not again be 'reviewed here. The second proposition raised is that the court;erred in refusing to give appellants l • requested instructiOns numbers 2; 3, 4, 5, 6, and 7. These instructions :will 'not be set out. It i8 sufficient merely . to' state- the . effect of them. Instruction No. 2 was to the effect that if the:jury find that there wa . S nothing to indicate to the defendants a defect in the handhold, and that the• absence of the!'aut
260 BALDWIN V. SEARS. [192 from the handhold would not have been ascertained by the use of ordinary care and caution in inspecting the same, then the defendants would not be liable. In discussing this proposition, it may be stated that the train was engaged in interstate commerce and that the particular car on which the injury was alleged to have occurred was moving in interstate commerce. A provision ,of the Safety Appliance Act, ,45 USCA, § 4, as amended, provides : "It shall • be unlaWful for any railroad 'Oompany to use any Car in interstate commerce that is not provided with secure grabirons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars." In 1910 an amendment was passed Which provided : "It shall . be unlawful for any common carrier, subject to the provisions of this chapter, to haul or permit to be hauled Or used on its line, any car, subject to the provisions of this chapter, not equipped with appliances herein provided 'for, to-wit : all cars must be equipped with secure sill steps and efficient hand brakes ; all cars requiring secure ladders and secure running-boards shall be equipped with such ladders and running-board and all ears having ladders shall also be equipped with secure handholds or grabirons on their roofs at the tops of such ladders." (45 . . U . .S . CA, .§ 11). The Safety Appliance Act also gave to the Interstate COmmerce Commission power to promulgate rules and regulations as to the location Or maimer of fastening or affixing safety appliances designated in the act. Sirch regulations admittedly were: legal and provided for the location and secure-fastening of handholds. This. injury occurred, by reason of a violation of the Safety Appliance Act. That act did not make liability dependent upon the exercise of . ordinary carp by the carrier. In other words; liability is not dependent upon negligence; but arises upon violatiou of .the Safety Appliance Act; which violation is the proximate cause of the injury. Instruction No. 3 was to the effect that, as this particular car, LUX 870, belonged to the Lion Refining Corn-
ARK.] BALDWIN V. SEARS. 261 pany, the only duty that the defendants owed to the plaintiff was to exercise reasonable care and caution in inspecting the car and the handholds. That was not a proper test. The carrier did not have to accept this car into its train with the defective handhold or grabiron that caused the injury. Upon acceptance of the car in that condition, defendants had the same responsibility as if they had been owners. Instruction No. 4 is to the effect that if the jury should find that the nut was removed from the holt 'holding the handhold after the car had been inspected at El :Dorado by the inspectors of the defendants, at the time it was placed in the train, and that same had not been removed for a sufficient length of time to have been discovered by the defendants, they should find for the defendant. An examination of this record does not disclose that the affirmative defense was made that the nut was removed after inspection. There is no proof to that effect and only by conjecture could such a conclusion be reached. Substantial evidence is wholly lacking. There is evidence that the bolt had rusty threads where the nut should have been. In the absence of any proof, the jury should not have been invited to speculate and by speculation find that the ori o inal bolt, without rust, was removed and a rusty one substituted therefor. If such was the purpose Of the refused instruction, it was abstract. No. 5 is an instruction to the effect that the Plaintiff must have exercised reasonable care for his own safety and protection, and that, if he were negligent or failed to exercise the care that a reasonably prudent person would have done under similar circumstances, then he could not recover. In other words, it was an instruction that if the plaintiff were guilty of contributory negligence he would be barred. No. 7 is an instruction to the effect that if the defect were observable or . apparent that plaintiff must have assumed the risk. • Neither the assumption of risk, nor contributory,negligence, is a defense in cases of this kind. The Federal
262 BALDWIN V. SEARS: [192 Safety Appliance Act abolished the defense of assumed risk. 4 USCA, § 7. . So also was the: defense of contributory negligence abolished in any case . wherein the -violation by the carrier 'of the provisions of the act contributed to the injury or ,death of the employee. 45 USCA, § 53 ;.Great lorthern Ry. Co. v. Qtos, 239 U. S. 349, 36 S. Qt. 124; Grand Trunk Western R. Co. v. Lindsay, 253 U. S.,42, 34 S. Ct. 581. These statutes impose absolute duties upon carriers engaged in interstate commerce. These duties are not discharged by the exereise of reasonable care. Chicago, Burlington & Quincy Ry. Co. v. United States, 220 U. S. 559, 31 S. Ct. 612.. See, also, St. Louis Iron Mountain ce Southern Ry..Co: v. Taylor, 210 U. S. 281, 28 S. Ct. ,616. Even though the carrier does not own the ,equipment, it becomes liable : for substandard or .defective appliances, when it uses them in interstate commerce and injuries' result to employees therefrom. 2 Roberts Federal Liability of Carriers, p.:1265. Johnson v. Great Northern Ry. Co., 178 Fed. 643; U. S. v. Chicago Great Western Ry. Co., 162 Fed., 775, The authorities herein cited justify the instructions given and the refusal. to.give. those requested by appellants. It is not necessary to attempt a further analysis of the . instructions or to support our position by further citations. Only one other matter is presented for our consideration. We are asked to say that the Verdict . is excessive. Upon what theory? The testimeny of experts, who say . there is no injury as the result , of the fall. This testimony is contradicted by other experts -who are equally positive the:appellee is totally disabled and incapacitated to earn a living or to enjoY whatever of life remains, but' doomed to grew progressively worse with added suffering till death. There is an imposing array- of , witnesSes, scholarly men, at the top of one of the great•learned professions. They brought to the jury perhaps 30 or mere-X-ray pictures. They "read" or "interpreted" these picttres. They expounded their theories elaborately and conclu-
ARK . 263 sively; •with • resUlting - confusion' and irreConcilable• • • • • We are helpleSs: : . We know of no. methOd• t• o check for truth and . error.. Counsel have not Suggested any, though they-ate. expertS also • in 'their sphere: We say that* in a 11 • Orioilsness,. 'but for. a • purPose.. • . • ! ! • • '• ' Expert. testimOny is . 'offered, according to theory, to explain to the jury matters discernible or understood. only by reason of special learning. It would be-hard to discover a better example of • the futility of exPert testimony 'than is found 'here. H • . • . ' :Appellants ,haVe. the .naive , consolation, that the ver dict; is ' the:composite. conclusion of .12 . practical-It is supported. ,• Western . Union yo Turner, 190 Ark. 97, 77. S: W. (2d) 633. • , . H - .No error is, shown.' Affirmed. ,• • .,
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.