text:
    Hollan v. American Bank of Commerce & Trust Co.
    Opinion delivered May 25, 1925.
    1. Mortgages — security for other indebtedness. — A ¡mortgage executed to secure certain notes which provides that it shall be security for any other indebtedness that may be owing by the mortgagor to the mortgagee “up to the time of foreclosure” is not limited to indebtedness incurred before maturity of the described notes, but includes all indebtedness of any kind incurred up to •the time of foreclosure.
    2. Mortgages — construction.—A mortgage is a matter of contract between parties, as there is no limitation upon the right to contract with reference to the extent of the debt secured; the province of the court being merely to interpret the language and declare the right of the parties in accordance with the expressed intention of the parties.
    Appeal from Pulaski Chancery Court; John E. Mar-tineau, Chancellor;
    affirmed.

      Snodgress & Snodgress, for appellant.

      Moore, Smith, Moore & Trieber, for appellee.
   McCulloch, C. J.

This is an action to foreclose a mortgage executed by appellants to appellee on certain real property in the city of Little Bock. The mortgage was executed on April 3, 1920, to secure the payment of two notes of that date, each for $2,000, payable one year after date, with interest. The mortgage also contained the following clause:

“This deed of trust shall be security for any other indebtedness of whatever kind or character that may be owing by grantor to said American iBank of Commerce & Trust Company up to the time of foreclosure of this deed of trust, whether then matured or not, but the lien therefor shall be subordinate to the lien for the indebtedness herein specifically described.”

When the notes became due there was an agreement extending the date of maturity until October. 3, 1921.

In April, 1921, appellants became further indebted to appellee as indorsers on two negotiable promissory notes, executed by one Williams to appellants and by them sold and indorsed over to appellee. Liability of appellants on these two notes was established by a judgment at law rendered in favor of appellee prior to the institution of the present action, and the amount of that indebtedness was, at the time of the decree below, $972.21. The only point at issue in the case was whether or not the indebtedness described above, in addition to the two notes specifically mentioned in the mortgages, fell within the terms of the mortgage and were secured thereby. The court decided in favor of appellee on that point, and rendered a decree foreclosing the mortgage both as to the notes and additional indebtedness. There was a junior mortgagee, who was made party and has not appealed. No question is involved as to 'priority between the junior and senior mortgagees.

It is first contended by counsel for appellants that the language of the mortgage should be interpreted to refer only to indebtedness incurred up to the date of the maturity of the two notes described in the mortgage. Placing that interpretation on the language of the mortgage does not help appellant’s cause, for, according to the undisputed evidence, there was an agreement extending the date of the maturity of the notes to a date beyond the time that the additional indebtedness was incurred. But we are of the opinion that the construction contended for by counsel for appellants is not the correct one. In the case of Fort v. Black, 50 Ark. 256, there was involved the interpretation of a mortgage to secure a promissory note and to secure “supplies furnished and to be furnished,” and this court held that the mortgage covered only advances made up to the date of the maturity of the note. In later eases involving mortgages, using1 broader language, we have held that the mortgage covered any-indebtedness up to the time of the foreclosure. Bach instrument, of course, must be interpreted according to its particular language, and, in order to interpret the present mortgage in accordance with the contention of counsel for appellants, it would be necessary to wholly reject the language in the mortgage which has an unmistakable meaning. Howell v. Walker, 111 Ark. 362; Word v. Cole, 122 Ark. 457.

We must interpret the language of this mortgage to mean just what it says — that it secures any indebtedness incurred up to the time of the foreclosure. It is a matter of contract between the parties, as there is no limitation upon the right to contract with reference to the extent of the debt secured by a mortgage, and the province of the court is merely to interpret the language and declare the rights of the parties in accordance with their intention as expressed in the language used.

It is next contended that this case falls within the ruling of the court in the recent case of Page v. American Bank of Commerce & Trust Co., 167 Ark. 607. In that case a series of chattel mortgages had been executed by the present appellants to the present appellee to secure separate notes, and there was a clause in each of the mortgages providing that it should be security “for all other moneys, advances, goods, wares, merchandise, supplies, services, etc., furnished by the party of the second part (the ¡bank) to the party of the first part (Hollan Auto Company) up to the foreclosure of this instrument.” In disposing of the case here, we said:

“We think the proper interpretation of the clause for advances in the several mortgages was to secure any additional advances which appellee might make on any particular shipment, and not secure independent loans secured by other mortgages on independent shipments. The clause was not intended to cover loans secured by separate mortgages on entirely different property, but to secure advances related and incident to each particular contract and shipment.”

It will be observed that the clause of the mortgages involved in that case and the clause involved in this case are couched in entirely different language. In the former case it provided for the security of “all other moneys, advances, goods, wares, merchandise, supplies, services, etc.,” whilst in the present .case the mortgage . secures “any other indebtedness of whatever kind or character that may be owing by grantor to said American Bank of Commerce & Trust Company up to the time of foreclosure of this deed of trust.” The former mortgages were restricted by the language to indebtedness incurred for advances, whereas the mortgage now before us embraces anjr kind of indebtedness. The language of the present mortgage is just about as broad as it is possible to make it. Nor does this case fall within the recent decision of this court in Lightle v. Rotenberry, 166 Ark. 337, where it was held that a mortgage providing that it should be security “for.the payment of any other liability or liabilities of grantor already or hereafter contracted” did not embrace obligations of the mortgagor held by the bank as collateral security for the debt of another person. In interpreting the language of the mortgage in that case, we said that it had reference to liabilities which had directly arisen between the mortgagor and mortgagee. The language in the present case is far broader, for it reads, “other indebtedness of whatever kind or character that may be owing.” It is difficult to imagine how more appropriate language could have been used by the parties with the intention of accurately describing the particular kind of indebtedness involved in the present case. It is clear that the parties meant to include every kind of indebtedness or liability of appellants to the appellee, whether it arose directly or indirectly. The chancery court was therefore correct in holding that the mortgage of appellants to appellee embraced and secured, as against the appellants as mortgagors, the additional indebtedness heretofore described. We express no opinion as to what the effect would be if the rights of subsequent mortgagees were involved.

Decree affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Dyke Brothers v. Stokes.
    Opinion delivered May 25, 1925.
    1. Appeal and error — harmless error — admission op evidence.— In a suit on an oral contract of employment, where the issue was as to whether defendants promised to pay to plaintiff a bonus in addition to his salary, it was not prejudicial error ' to permit plaintiff to testify that there was no possibility of his being mistaken in his verson of the contract, where such statement was merely a repetition of his prior statement.
    2. Contract — evidence.—In a suit on an alleged oral contract to pay a bonus in addition to a salary, it was not error to permit plaintiff to testify that he would not have given up his business elsewhere and come back to work for defendants but for such promised bonus, and also that he had contracted debts on the strength of such promise.
    3. Witnesses — cross-examination.—In a suit upon an alleged oral contract to pay a bonus in addition to a salary where plaintiff testified that he had contracted debts in reliance on such promise,' refusal to -permit defendants to cross-examine plaintiff as to the specific debts which he -contracted in reliance thereon was not error.
    4. Evidence — self-serving declaration. — In a suit to recover a bonus alleged to have been promised in addition to salary, testimony of plaintiff concerning debts contracted in reliance upon
      the ‘alleged bonus held not in the nature of self-serving declarations.
    5. Appeal and ERROR — failure to object to language of instructions. — A p'arty who does not specifically objéct in the trial court to the phraseology of an instruction cannot object thereto on appeal.
    C. Trial — instruction singling out testimony. — In a suit to recover a bonus, which plaintiff alleged was to be paid in addition to his regular salary, an instruction that if the circumstances surrounding plaintiff’s employment, in addition to the evidence of the appellee as to the contract, constituted a preponderance of the evidence, the verdict should be for plaintiff, held not objectionable as emphasizing plaintiff’s testimony.
    7. Trial — repetition of insturctions. — Refusal to give requested instructions, fully covered by others given, held not erroneous.
    8. Appeal and error — oral instruction — harmless error.— In a suit on a contract to pay a certain amount as bonus in addition to a fixed salary, an oral instruction to the jury that their verdict need not he for the full amount claimed, held not prejudicial.
    9. Appeal and error — verdict—harmless error. — Defendants cannot complain because a verdict against them was for a less sum than the evidence justified.
    Appeal from Sebastian Circuit Court, Fort Smith, District; JolmE. Tatum, Judge;
    affirmed.

      Warner, Hardin, é Warner, for appellants.

      Cravens S Cravens, for appellee.
   Wood, J.

This is an action by the appellee against the appellants. Appellee alleged in substance that the appellants entered into a verbal contract with him for employment whereby they agreed to pay appellee, in addition to a fixed salary of $200 per month, a bonus of ten per cent, of the net earnings of appellants ’ business; that he had received his salary for the year 1922, but had not received the bonus, and that the net earnings of that year were more than $60,000; that the appellants therefore were due the appellee a bonus in the sum of $6,000, for which he prayed judgment.

The appellants answered denying that they had entered into any contract whatever to pay the appellee a bonus, and therefore denied liability.

The testimony on behalf of the appellee tended to prove that Dyke Bros, was a partnership composed of M. T. Dyke, Nathan Dyke, Jr., Frank W. Dyke, and Martin T. Dyke, Jr. The partnership was engaged in the business of retailing building material and manufacturing mill work in Fort Smith and various other places in Arkansas, and at Poteau, Oklahoma. The appellee first began work for the firm in July, 1907, and quit in January, 1920. He was for thirteen years the bookkeeper and cashier, and the last two or three years he was salesman. Part of the time he received a salary of $175 per month, and later the sum of $200 per month. The appellee, after quitting appellants in 1920, went to DeQueen, where he, with others, established a corporation engaged in the lumber business. While appellee was at DeQueen, M. T. Dyke, Sr., requested him at least four times to come back to Fort Smith, and told him that he (Dyke) had been trying to work out a way whereby the appellee, as employee, would share in the profits of the business of appellants to compensate him for the years of service he had given to appellants in the past. While witness .was at DeQueen he received for a time a salary of $200 per month as bookkeeper, and the last six months it was reduced to $175 p'er month. Witness went back to work for the appellants from January 15, 1922, at a salary of $200 per month, and at the end of the year appellants were to give him as a bonus ten per cent, of the net profits of the business. The net profits of the business for the year 1922 were something like $60,000. During the early part of the year 1923 witness asked the appellants about his bonus, and Dyke stated that there would be no bonus for the year 1922, giving as a reason that appellee did not measure up to the standard — didn’t give appellants what they thought he would. Appellee replied that they had been a long time saying anything about his not measuring up to the standard, and that they had let him work all that year expecting the bonus, and he told appellants that he was going to quit at once. Appellee demanded ten per cent, of tlie $60,000 profits, and the appellants refused to pay it, and appellee instituted this action.

Appellee testified that he gave up his salary and the profits in his business at DeQueen when he returned to Fort Smith the first of the year 1922 to work for the appellants, and, in July of that year, he sold his stock in the corporation at DeQueen. The attorney for the appel-lee asked him the following question: ‘ £Is there any possibility of your being mistaken about Mr. Dyke offering to pay you, in addition to the $200 per month salary, a ten per cent, interest in the profits of Dyke Bros, business, if you would come back and go to work for them?” Appellee answered, “No sir.” The appellants objected to the question, the' objection was overruled, and they duly excepted. After the appellants closed their case, the appellee was called in rebuttal, and, during the cross-examination, he was asked by his attorney the following:

“Q. Would you have given up your business at DeQueen but for the promise that you were to have ten per cent, of the profits of the business as a bonus?” The appellants objected, the court overruled their objection, and the appellants duly excepted. Thereupon the appel-lee answered the above question as follows: “I would not; I neverwould have sold my business and given up my position in DeQueen if he had not promised me that bonus.” The appellee was further asked: “Q. Did you contract debts on the strength of the promise of Mr. Dyke that he would pay you this bonus if you came back to work for him?’’ The appellants objected, the court overruled their objections, and the appellants duly excepted. The- appel-lee then answered the question as follows: “Yes sir.” The counsel for appellee then asked appellee when he contracted these debts and what debts he contracted in DeQueen in December. Thereupon the court ruled that it would not allow the witness to go into detail in explaining the debts. Counsel for appellants then stated that they had a right to go into detail as to the debts on cross-examination. The court ruled that that was not material, and refused to allow appellants’ counsel to examine the appellee as to the specific debts contracted in December, stating that it was sufficient that he said he had contracted debts. Appellants objected to the ruling of the court, and excepted thereto.

Appellants categorically denied that there was any contract with the appellee to pay him a bonus, and denied that they had requested him to return to Fort Smith. They admitted that he was employed by them after he returned to Fort Smith. The testimony on behalf of the appellants was to the effect that they never promised a bonus to any one as a part of compensation or salary for services. They had paid some bonuses for twelve or fourteen years, but never promised one to anybody. When given, they were given purely as a reward for good service and not as a contractual obligation. Their testimony was to the effect that they never asked appellee to return from DeQueen, and that appellee asked employment of the appellants on his own initiative, stating that he could not make any money in DeQueen, whereupon the senior member of the firm of appellants told appellee that he (appellee) knew he could always have a job with them at any time. Appellee finally telephoned the senior Mr. Dyke that he wanted to see him, and he came up on a Sunday morning in December. Appellants told him that he could come back, and his salary would be $200 per month. During the former years that appellee had worked for appellants they had always paid him a liberal salary, and he was always satisfied with it. They positively denied^ that there was anything said about a bonus or interest in the business as a part of appellee’s compensation. They did not tell appellee that they would give him the same per cent, of the profits as was received by the sons of the senior members of the firm.

Appellee quit the employ of the appellants in March, 1923. Mr. M. T. Dyke, Sr., described in detail the conversation that he had with the appellee at that time as follows: “He came into my room and sat down and said, ‘Mr. Dyke, I have always come to you when I was in trouble, and you have always helped me out,’ and I said, ‘What’s the trouble, Walter?’ and he said he was owing debts which were making him trouble, and showed me a list of debts he owed, and I looked them over and said, ‘I have helped you three or four times before, but how in the world have you come to owe so much money?’ and he said, ‘On account of the sickness of my wife.’ We talked for quite a while, and I told him I did not see how I could help him out that much, and he left. Nothing more was said until the following Monday, about 4 o’clock in the afternoon, and he asked me again to help him. He said he had to have money and I said, ‘Walter, there is nothing doing,’ and he said, ‘Well, I have quit,’ and I said, ‘Do you mean to say you quit on thirty minutes’ notice,’ and he said, ‘I have quit — I have to have money to pay these debts.’ ”

The witness further testified that he never made a contract with the appellee for a year. He had never in his life made a contract with any person to work for any term whatever. Appellee was to work for $200 per month. Witness further testified that, in the conversation between him and the appellee about appellee’s quitting the employment of the appellants, appellee did not then or afterwards say that he had contracted any debts on the strength of the alleged promise to pay him a bonus of ten per cent, of the profits in the business, and the witness denied that any such conversation ever took place.

At the request of the appellee the court gave, among other prayers, instructions Nos. 1 and '2, which in effect told the jury that the plaintiff alleged in his complaint that, on or about the 15th of January, 1922, he entered into a contract with the defendants whereby they agreed to pay him for his services for the year 1922 a salary of $200 per month and in addition thereto ten per cent, of the net profits earned by the defendants in their business; that the burden was on the plaintiff to establish these allegations by a preponderance of the evidence; that, if the jury believed from the evidence that the contract as set out in plaintiff ’s complaint was entered into with the defendants, and that bis evidence on these material allegations eonstitnted a preponderance of the evidence, their verdict should be in favor of the plaintiff in sneh sum as the jury should find from the evidence in excess of the sum of $200 per month.

The court also gave appellee’s prayer for instruction No. 3, which in effect told the jury that, in determining the greater weight of the evidence, they would take into consideration all the circumstances in connection with the employment, and, if the circumstances surrounding appellee’s employment, in addition to the evidence of the appellee as to the contract, constituted a preponderance of the evidence, their verdict should be for the appellee in such sum as the jury might find from the evidence the appellants agreed to pay him for his services in addition to the sum of $200 per month.

The appellants requested the court to instruct the jury, in their prayer for instruction No. 1, to return a verdict in their favor. And in their prayer for instruction No. 2 they requested the court to define to the jury the issues they were to determine. In their prayers for instructions No’s. 3, 4 and 6 they asked the court to instruct the jury that the burden was upon the appellee to establish the alleged contract by a preponderance of the evidence. And in their prayer for instruction No. 5 they asked the court to tell the jury that, if the appellee made an oral agreement with the appellants to employ him for a longer period than one year at a salary of $200 per month and ten per cent, of the net profits earned by the appellants during each year, such agreement, if made, would be within the statute of frauds, and the appellee could not recover.

The court refused the above prayers for instructions, to which rulings the appellants duly excepted.

I lie court gave appellant’s prayer for instruction No. 7, which told the jury that, “if the. defendant, M. T. Dyke, did not agree to pay the plaintiff ten per cent, of the net profits earned by the defendants each year, in addition to the salary of $200 per month, then the plaintiff could not recover, and their verdict should be in favor of the defendants.”

After the jury retired to consider of its verdict they returned for special instructions, and the following occurred: “The foreman asked the court: ‘Do we understand that we have to find for the full amount, if anything1?’ The Court: ‘No, the instructions do not read that way.’ Foreman: ‘That is the question we want to ask.’ The Court: ‘We instructed you that if you find for the plaintiff, you will write your verdict, “We, the jury, find for the plaintiff” in any sum you think that the evidence warrants, not exceeding the amount claimed.’ Foreman: ‘The jury did not understand that.’ The Court: ‘That is the instruction .I gave you. You are not bound to consider the arguments. The evidence and the instructions of the court govern you. They just give their interpretation of the evidence. They are officers of the court, and you have a right to give proper weight to their arguments.” Thereupon the court re-read the instructions that had been given to the jury. Counsel for defendants at the time excepted to the rulings of the court. The jury returned a verdict in favor of the appellee in the sum of $3,600. Judgment was entered in appellee’s favor for that sum, from which is this appeal.

The court did not err in permitting the appellee to state that there was no possibility of his being mistaken in his version of the contract. While the questions and answers were in the nature of an argument, which the court might very properly have refused to allow'' the appellee to make, nevertheless the statement was a mere reiteration of what the appellee had already testified, and the restatement of his testimony by way of emphasis and argument could not possibly have prejudiced appellants’ rights in the minds of the jury. It is hardly possible that a sensible jury would conclude that a fact once truthfully stated would gain any force by reassev-eration. It occurs to us that the repetition of the question and answer might tend to weaken rather than to strengthen the testimony of the appellee:

Nor was there any prejudicial error in permitting the appellee to state, in answer to questions of his counsel, that he would not have given up his business at DeQueen and come back to Fort Smith to work for the appellants but for the promise of the appellants to give him a ten per cent, bonus of the profits of the business in addition to his regular salary, nor in permitting the appellee to state that he had contracted debts on the strength of the promise of the ten per cent, bonus. These questions and answers thereto were during the examination of the appellee in rebuttal to certain conversations which, according to the testimony of M. T. Dyke, Sr., had taken place between himself and the appellee concerning the appellee’s last employment by appellants. Dyke testified that the appellee had solicited this employment with the appellants; that, in one of the last conversations before his employment, appellee said that he owed personal bills at DeQueen and could not get out of DeQueen unless the witness would pay the bills, and he told witness he wanted to get some money from witness, and witness let him have $850, and took his stock in the DeQueen corporation as security; that, after that, appel-lee wrote for $400 more, and witness let him have that; that, in March, 1923, just before the appellee quit the employment of the appellants, he had another conversation with witness in which he said that he was owing: a lot of debts that were giving him trouble, and showed witness a list of the debts he owed. "Witness looked them over and asked him the situation, and appellee told witness about them. Witness said, “Now, I have always helped you out three or four times before, but how in the world came yon to owe so much, money?” Appellee replied that it was on account of the illness of his wife. Witness finally told him that he didn’t see how he could help him out that much. Appellee insisted that he had to have money, and asked witness to help him out. Witness refused, and appellee quit, saying, “I have quit— I have to have.money to pay these debts,” and he left, and witness had not talked to him since.

In rebuttal of the above-testimony of Dyke, Sr., the plaintiff was recalled and testified, without objections, as follows:

“Q. Mr. Dyke stated that you went to him and stated to him that you were in debt and that you had to have money, and asked him to advance you money. If you had a conversation with him about it, tell the jury what you told him? A. He knew my financial condition, and has known it all the time, and I at different times have owed him and borrowed money from him, with as much sickness as I have had in my family for the last ten years or twelve years; and before Christmas we had made some local bills around town, made some purchases that we would not have made under any other circumstances if it had not been that he promised me that percentage. Q. Did you tell Dyke that? A. Yes sir; I asked him at the time that he refused to give me that percentage, I said to him, ‘You see now what you have done to me.’ Q. What did you tell him that he had done to you? A. How is that? Q. What did you tell him that he had done to you ? A. I told him that he had just ruined me, that is all. Q. I will ask you this question. I cannot get you to tell it any other way. Did you tell him that you had made a lot of debts on his promise lo give you this profit of the business, ten per cent? A. Yes sir, I did. Q. And that now, as he had refused to pay it, did you tell him what a fix that had gotten you into? Did you tell him that? A. Yes sir.”

When the entire record is considered, it is manifest ilml the court did not err in admitting the testimony of the appellee, as above set forth, to which appellants here object. The testimony was proper in rebuttal.

There was no error in the ruling of the court in refusing to permit the appellants to cross-examine the appellee as to the specific debts which he had contracted. The appellants themselves had elicited the fact that the appellee was indebted. It woul'd have been drifting too far afield and would have introduced collateral issues to have permitted a cross-examination as to any specific debts contracted by the appellee. It would have been competent and relevant for appellants to show that the appellee had not contracted any debts in contradiction of appellee’s statement to that effect, but such is not the purport of the cross-examination. The court only refused to permit appellants to “go into the details of the debts.”

We are convinced that the testimony of the appellee concerning the debts, in the manner and form in which same was elicited, was not in the nature of self-serving declarations, as the appellants contend, and the authorities cited by them bottomed upon that assumption have no application to the testimony of the appellee as above set forth.

The court did not err in granting appellee’s prayer for instruction No. 1. This instruction was predicated upon the issue raised by the appellee’s amended complaint and the answer thereto. The appellee alleged in'this amended complaint that the contract as set forth in the original complaint was entered into for the year 1922, and this was denied by the appellants. There was no specific objection by the appellants to the phraseology of this instruction in the trial court, and such objection here therefore cannot avail the appellants. The instruction was not inherently erroneous. The same may be said of instruction No. 3. This instruction does not, as appellants contend, single out and give undue prominence to the testimony of the appellee and emphasize the particular features of the case presented by his testimony. On the contrary, the instruction tells the jury to take into consideration not only the evidence offered by the plaintiff and the circumstances surrounding his employment, but all the evidence and all the circumstances in the case, and to determine from these where the greater weight of the evidence lies. This instruction, when read in connection with instructions 1 and 2 given on the court’s own motion, could not have confused or misled the jury. Instructions 1 and 2 on the court’s own motion told the jury in substance that the burden of proof is on the appel-lee to establish his case by a preponderance of the evidence, and that a preponderance of the evidence means a greater weight of the evidence. There was no error in the rulings of the court in refusing appellants’ prayer for instructions numbered from 1 to 6 inclusive. Such of these as were correct were fully covered by instructions which the court gave.

We find no prejudicial error in the ruling of the court in giving the oral instruction or explanation in response to the inquiry of the jury, through their foreman, as to whether the verdict, if in favor of the appellee, would have to be for the full amount claimed by him. This oral instruction was but tantamount to telling the jury that, if they found for the appellee, they should return a verdict in such sum as the evidence warranted, but not exceeding the sum claimed. Since the jury found in favor of the appellee, the appellants cannot complain that the amount of the verdict was less than the jury might have found from the evidence of the appellee. There was evidence to support the verdict. The issues of fact were in sharp conflict, and they were submitted under instructions which, upon the whole, correctly declared the law.

There are no reversible errors in this record. The judgment is therefore affirmed .

Humpheeys, J., dissents.


text:
    Chicago, Rock Island & Pacific Railway Company v. Webb (1) and Cherry v. Chicago, Rock Island & Pacific Railway Company (2).
    Opinion delivered May 25, 1925.
    MASTER AND SERVANT — PENALTY FOR NONPAYMENT OF WAGES.— In an action to recover from, a railroad company the penalty for nonpayment of wages of discharged employees, evidence held to sustain a finding that the plaintiffs had complied with Crawford & Mioses’ Digest, § 7125, and that the company had failed to pay their wages at the time and place required.
    Appeals from Hot Spring Conrt; Thomas E. Toler, Judge;
    N\o. 1 affirmed; No. 2 reversed.

      Thos. 8. Busbee and Geo. B. Pugh, for Railroad Co.

      A. I. Roland and D. D. Glover, for plaintiffs.
   Wood, J.

W. 0. Webb and J. C. Cberry were employed by the Chicago, Rock Island & Pacific Railway Company, hereafter called company, to watch and coal its engines at night while in its yards at the town of Malvern. They instituted independent actions against the company, under § 7125 of Crawford & Moses ’ Digest, to recover the penalty for nonpayment of wages, alleging that they had been discharged; that they had complied with the statute, and that the appellant had refused to pay their wages. The appellant answered and denied liability. The causes were consolidated for trial.

Webb testified that he was nineteen years old. He went to work for the company August 27, 1923. His duty was to watch and coal engines at night so as to have them ready for the next day. He was to receive $3 per night. He worked five nights. His foreman was named Ledford. Ledford employed him and discharged him. He was discharged September 1, 1923. When witness was discharged by Ledford, witness asked him when he could get his money, saying that he would like to have it right then. Ledford replied, “You will get it in a day or two. Just send a card in for your time.” Ledford said he didn’t have anything to write witness’ time on; that they attended to that in Little Rock, and would send it to the office at Malvern. Witness requested Ledford to have it sent to Malvern. Witness made out a card every morning for the night before, and made out such a card on the morning of 'September 1. He put it'in the baggage coach and sent it to Butterfield and then to Little Rock. Witness put the card where Ledford told him to put it. Por sisteen days thereafter, witness went to the office at Malvern and asked the agent if the check had come for his money, and the agent told him that it hadn’t come. Witness then went to the passenger depot a,pd wired for his pay, and still it didn’t come. It was finally sent to Mr. Glover, witness’ attorney. Witness worked some overtime, and that was the reason why the check was sent for $17 instead of $15. Witness had turned in his time for $15 when he brought the suit. Witness signed the card “Owen Webb,” and they made out the check to “Wiff” instead of “Webb.”

Cherry testified that he was employed by the company in the same capacity as Webb. He was discharged on September 3 by Ledford. When he was discharged he demanded his time of Mr. McColpin, the foreman on the job, and was told that he wonld have to go to the time office at Little Rock. He was told to report to the freight depot to Mr. Johnson, and he would get his money from him in two or three days. Witness made out his own time card each morning and took it to the foreman, who was the engineer on the passenger train. The foreman O.K. ’d it. Witness put these time cards in the baggage coach in the mail department, where witness was instructed to put them. The foreman told witness that witness would collect for his time over at the freight depot, where Johnson was the agent. Witness went to the freight depot every morning to try to collect the amount due him, until the 16th of September. He then went to the passenger depot and wired to the time-keeper in Little Rock for a check. Johnson was the agent of iho company at the freight depot, and Jones was the [ime-keeper and cashier, Witness sent the wire to Little Rock for Ms pay addressed £‘ Time-Keeper, Rock Island.” He didn’t know the name of tke time-keeper.

Ledford testified that lie was not tke time-keeper of Webb and Cherry; that he was looking after the engines and keeping the boilers from being blown np, as these boys were inexperienced. He was telling them how to do their work. He didn’t hire either of them. Neither of the boys asked him to get a time-check for them. Webb asked witness about getting his pay, and witness told him to go to McColpin, who was taking care of that. Witness understood that McColpin had O.K.’d their time cards. He signed their cards for them.

McColpin testified that he was in the employ of the company as a locomotive engineer. He had nothing to do with employing Webb, other than to tell Cherry that, if he had an extra engine, he could pick up somebody to help him out. Witness remembered the time that Cherry and Webb quit work. Witness O.K.’d the time cards of Webb and Cherry in order to identify the parties. It was what was called their work cards. ■ Witness told Webb and Cherry to mail these cards to the master mechanic at Little Rock. Webb came around one morning and asked witness what to do to get his time, and witness told him to take it up with the agent and the agent would wire for his time, or something to that effect. Witness didn’t undertake to get the time for Webb himself. The engine watching was done under witness’ supervision. Time would not be recognized unless witness O.K.’d the cards. There was a place on the train for receiving railroad mail. ■ Witness told the boys where to put their cards. These cards, if made out properly, would go to the master mechanic’s office at Little Rock. Then it would be the master mechanic’s duty to see that the checks were issued. The parties were furnished envelopes by the company rvhich they used to mail these cards. All of the men working there watching these engines would come to witness to O. K. their cards. Cherry and Webb did ,iust like the others had done.

Johnson testified that ho was tin1 agent of the company at Malvern in September, 192.*). He remembered Cherry and Webb asking the cashier, Jones, about their time checks. They never did come to witness. The pay checks usually came to witness’ office on the 14th, 30th or 31st of the month — at the middle and end of each month. “Pay checks — we just handed out to the party they are made payable to, and the time checks — we take their signatures on the time checks and pay them the cash right there in the office. In order to get a time check, we have to have an identification to correspond to their check.”

Jones testified that he was in the employ of the company in August and September, 1923. He was cashier at Malvern. He knew Webb and Cherry. He denied that they asked him to get any time checks for them, and denied that they made any demand on him for pay for the work they had done. They did ask witness for checks which they were expecting. The checks were not there when they called for them. The regular pay cheeks usually came a day ahead of the 15th and a day ahead of the last of each month. These parties came to witness four mornings in succession asking about their checks, and witness suggested that they send a telegram. Witness didn’t have anything to do with keeping their time down there. Webb seemed to be looking for a time check, and there was no time check for him. After these pay checks came, witness tried to locate the parties, but could not do so. Witness kept the checks until the 18th of October, and did not mail it to Webb. Neither did he write Webb or Cherry that the checks were there for them.

The jury returned a verdict in favor of Webb to cover penalty only in the sum of $180, and in favor of the company against Cherry. Judgments were rendered in accordance with the verdicts, from which are these appeals.

Section 7125 of Crawford & Moses ’ Digest provides: “Whenever any railroad company or corporation, or any receiver operating any railroad engaged in the business of operating or constructing any railroad or railroad luid ge, shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages of any such servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of such discharge or refusal to longer employ; any such servant or employee may request of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station where a regular agent is kept, and, if the money aforesaid, or a valid check therefor, does not reach such station within seven days from the date it is so requested, then, as a penalty for such nonpayment, the wages of such servant or employee shall continue from the date of the discharge or refusal to further employ at the same rate until paid. Provided, such wages shall not continue more than sixty days, unless an action therefor shall be commenced within that time. Provided, further, that this act shall apply to all companies and corporations doing business in this State, and to all servants and employees thereof, and any such servants or employees who shall hereafter be discharged or refused further employment may request or demand the payment of any wages due, and, if not paid within seven days from such discharge or refusal to longer employ, then the penalties hereinbefore provided for railway employees shall attach.”

The undisputed testimony of Webb and Cherry showed that they were employed by the company, and that they were discharged, and their testimony, as well as the testimony of McColpin, shows that they applied to McColpin, who was their foreman and the keeper of their time. He O.KPd their time cards for their pay at the time they were discharged, and directed them whom to mail their time cards to at Little Rock, which was done in envelopes furnished by the company, so that they would go to the master mechanic’s office in Little Rock, where the record was kept. McColpin further testified that he told Cherry, when he came to witness to get the money for his labor, that he should go to the agent; that Webb might have been present when Cherry was making the inquiry. ' The undisputed testimony shows that both Webb and Cherry went to the freight agent at Malvern, where they were told to go and where they were assured their money would be sent in two or three days; that the pay checks were usually sent to the freight office. Webb and Cherry went to the freight depot, as their undisputed testimony shows, each day for sixteen days, after they had been discharged, and demanded their pay, and they were not paid even the wages that were due them until after the institution of their actions against the company. Webb was discharged on the first of September and Cherry on the third. The actions were instituted on the '21st of December, 1923, more th'an sixty days after their discharge.

The court, in its instructions, correctly declared the law as set forth in the above statute, and, at the request of the company, told the jury that, before the plaintiffs could recover, the burden was upon them to show by a preponderance of the testimony that they had complied with the provisions of the statute, first, by showing that they had been discharged or refused further employment; second, that they had requested their foreman or keeper of their time to have the money due them, or a valid check therefor, sent to the station at Malvern; and third,-that the checks failed to arrive at Malvern within seven days from the time they requested same to be sent.

The court also instructed the jury that, under the undisputed testimony, no penalty could accrue for more than sixty days, as the suits had not been brought until after sixty days of the date of their discharge. The issue was thus submitted to the jury' as to whether or not Webb and Cherry were entitled to recover any penalty under the statute. This was more favorable to the conn pany than it was entitled to, for, as before stated, the undisputed testimony showed that Webb and Cherry had complied with the statute and the company had failed to pay them their wages at the time and place required by the statute,, and thereby subjected itself to the penalty prescribed therein.

It could serve no useful purpose to set out in detail tlie instructions. Suffice it to say we have-examined same and find that they correctly declare the law applicable to the facts.

The appellant company relies upon the eases of Bush v. Coleman, 131 Ark. 379; Hall v. C. R. I. & P. Ry. Co., 96 Ark. 634; St. L. I. M. & S. Ry. Co. v. McClerkin, 88 Ark. 277; and St. L. I. M. & So. Ry. Co. v. Bailey, 87 Ark. 132. These cases are all differentiated from the case at bar by the facts. Applying the law as therein announced to the undisputed facts of this record, it is clear that both Webb and Cherry are entitled to recover. The judgment in favor of the appellee Webb is sustained by the testimony, and will therefore be affirmed. The judgment in favor of the company against Cherry is contrary to the undisputed evidence, and it is therefore reversed, and judgment will be entered, here in his favor against the company in the sum of $180, with interest at the rate of six per cent, per annum from J anuary 31, 1924.


text:
    Western Coal & Mining Company v. Dane.
    Opinion delivered May 25, 1925.
    1. Master and servant — unsafe condition of mine — evidence.— In an action by a miner for injuries mused by the harness of a mule oatching on overhead timbers, testimony of the mine inspector as to the condition of the roadway on which plaintiff was injured .prior to and after the accident was competent as tending to'show continuing negligence. . .
    2. Master and servant — assumed risk jury question when. — In an -action by a miner for injuries received by reason of the harness of a mule catching and dragging down overhead timbers, conflicting evidence as to plaintiff’s knowledge of the danger held to make the question of assumption of risk one for the jury.
    3. Master and servant — negligence of master — jury question.— • In an action by a miner for injuries caused by the harness of a mule oatching on overhead timbers, where there was testimony tending to sustain the allegation that defendant negligently permitted a mine entry to become filled with debris, the court did not err in sending:such issue to the jury.

      Appeal from Franklin Circuit Court, Ozark , District j James Cochran, Judge;
    affirmed.

      Thomas B. Pryor and Vincent M. Miles, for appellant.

      Grover C. Carter and Dave Partain, for appellee.
   Wood, J.

Oil the 23rd of October, 1923, George Dane was working in Coal Mine No. 2 of the Western Coal & Mining Company, hereafter called company. ■ He was driving an entry in the mine, and his working place was' about three-quarters of a mile from the bottom of the shaft. While riding to his work in one of the cars, as was the custom of the miners, the hames on one of the mules caught the timbers overhead and dragged them down upon Dane, injuring him. Pie instituted this action against the company, and alleged that the company was negligent in placing the timbers along the roof of the roadway in a position that was too low for a mule to pass with harness on. He further alleged that the company was negligent in allowing the roadway to become and remain filled with dirt, rock, coal and debris, so as to cause the place where the mule traveled to become and remain uneven and elevated in such way as to cause the mule and the harness thereon to catch upon and drag down the timber, which struck and injured Dane.

The company answered, denying the allegations of the complaint as-to negligence, and set up the affirmative defense of assumed risk on the part of Dane.

Dane testified that he had no work to perform in the roadway over which he traveled, except that he traveled the same back and forth going to and coming from his work. The testimony of witnesses for Dane was to the effect that, on the morning he was injured, he was riding in the car, when the hames on one of the mules caught a cross-timber overhead and.pulled it down. The timber was put there for the.purpose of holding up the rock, and trolley wires, were strung to it. At the time the car was going at about such speed as a mule would walk. It was the custom in this mine for the miners to ride empty cars to their work. It was a pretty sure thing for the liames on the mules.’ collars to catcli the cross-bar. At the particular time that Dane was injured the track was dirty. It was easier for a mule to get over the track when it, was not dirty. A few days before Dane was hurt they, had brought two mules in from the Rafter mine. The'Rafter mine had a higher roof than Mine No. 2, in which Dane was working at the time of his injury. Dane was riding behind one of the Rafter mules at the time he was hurt. .

The State Mine Inspector testified, over the objection of appellant, that he inspected the mine of the company in the latter part of July, 1923, and also on January 24, 1924; that he didn’t remember whether he had visited the mine between July, 1923, and January, 1924, or not. The last inspection he made prior to the day on which Dane was injured he found that the average height-of the mine entry leading from the bottom of the shaft was about five feet above the rails. There were one or two places in the main south entry where there were some rock, and there were some timbers placed there to support the work. These timbers were about four feet from the top of the ties. Witness made a report of the conditions he found at that time. He would not undertake to say how far it was from the pump station. It was not far from the pump station, but was between the bottom of the shaft and the pump station. The timbers between the bottom of the shaft and the,pump station were low enough for, a mule to drag.

Dane testified that he did not know, on the morning that he was injured, that he was riding behind one of the Rafter mules. He had heard his father-in-law say, four or five days before, that riding behind the Rafter mules would be at the men’s own risk. At the time he was injured there were seven men in the car besides himself, and the driver in charge of the men and the mules was G-eorge Cowing. When Cowing came in and hooked to the car, he didn’t tell Dane that he was hooking one of the Rafter mules to the cari and Dane didn’t make any investigation to determine whether it, was a Rafter mule nr not.

Witnesses for the company testified to the effect that, a morning or two before Dane was hurt, Jim Ivy gave instructions to the men, including Dane, to the effect that Growing was driving a mule from the Rafter mine, and Gowing said it was dangerous to ride behind him, and Ivy said that the men who rode in a car behind the Rafter mule would do so at their own risk. One of the witnesses testified that it was generally known in the mine that it was dangerous to ride behind the Rafter mules.

Ivy testified that he didn’t caution Dane about riding behind the Rafter mule; that he had no recollection of ever giving notice that it was dangerous to ride behind the Rafter mules, and that the men would do so at their own risk. One of the witnesses for the company testified that he Was with the mine inspector at the time he inspected the roadway, and that the place he inspected was 1,600 feet from where the accident occurred. The old pump station is 1,600 feet from the bottom of the shaft.

The company prayed the court to instruct the jury to return a verdict in its favor. The company also, among other prayers, presented the' following :

“No. 6. You are instructed that there is no evidence of negligence to sustain the allegations in plaintiff’s complaint that the defendant was negligent in permitting the roadway to become filled with dirt, rock, coal, debris and other material so as to cause. the harness on the mule to catch and drag down the timber, and your verdict must be for the defendant on that allegation of negligence.”

The court refused these prayers for instructions, to which ruling the company duly excepted.

The jury returned a verdict in favor of the appellee in the sum of $450. Judgment was entered in favor of Dane for that sum, from which is this appeal.

The court did not err in admitting the testimony of the State Mine Inspector to the effect that he had inspected the roadway or entry on which the appellee was injured, and that this inspection was made in. July previous .to tlie injury, and that he made another inspection after January 22, 1924, and that the condition was the same at the last inspection as at the former; that he- found.= timbers in the roof of the entry to support the rock,- and that, in one or two places, it was not more, than four feet high. It was not a great distance from the pump station between the bottom of tlie shaft and the pump station. These timbers were low enough for a mule to drag. This testimony was competent and relevant as tending to show that the appellant was negligent in maintaining the entry of its mine in such a manner as to make-it unsafe to the employees in going to and returning from their work, in that it tended to show that the entry of the mine, because of the conditions that existed at certain places along which the appellee had to travel, was too low for one of the mules which appellant was using to pass without dragging down the timbers in the roof. This was’ a continuing act of negligence, which', the testimony tended to prove, caused the injury and damage to the appellee. The testimony did not tend to prove separate, independent and different acts of negligence on the part of the company previous to the act of negligence causing the injury to appellee, and therefore the authorities upon which the appellant relies to sustain his contention that the inspection of the mine was incompetent had no application.

The appellant contends that the undisputed evidence shows that the appellee assumed the risk, but we are convinced that it was an issue for the jury under the evidence, and’ this issue was submitted to the jury under instructions which correctly declared the law on that issue. There was testimony on behalf of the appellant tending to prove that the appellee had been notified that it was dangerous to ride in a coal-car when said car was being drawn by a Eafter mule, on account of its height, and that the miners would do so at their own risk. But the appellee in his-testimony denied that he had been so advised, and his testimony and the testimony of Ivy made this an issue of fact to be submitted to the jury as to whether or not appellee knew and appreciated the ■ danger of riding in a car which was being drawn by a Rafter mule, and also as to whether or not he knew, at the time of his injury, that the car was being, so drawn.

The court did not err in refusing to grant appellant’s prayer for instruction No. 6. The appellee alleged in his complaint that the appellant was negligent in permitting its, roadway, over which the cars moved and upon which the appellee was being transported at- the . time of his injury, to. become and remain filled with dirt, rock, coal and. debris, so as to become uneven and elevated in such manner as to cause the mule and harness to catch, upon and drag down the timber upon the appellee. There ■was testimony on. behalf of the appellee tending to sustain these allegations of his complaint. The court therefore did not err in refusing to remove this issue from the jury. . ■

. We find no reversible, error in the rulings of the trial court, and its judgment must therefore be affirmed.; It is. so ordered.


author: HaRt, J.,

text:
    Meeks v. Graysonia, Nashville & Ashdown Railroad Company.
    Opinion delivered May 25, 1925.
    1. Carriers — instruction ignoring issue. — Wher'e plaintiff who was waiting in defendant’s‘station while the local mixed freight train on which she was traveling was being switched, desiring to use a toilet, and seeing none in the station, returned to the .caboose and was injured while standing in the aisle by ian alleged violent jerking of the train, an instruction to find for the defendant if plaintiff failed to inquire for the toilet .at the station held erroneous as ignoring the issue as to the alleged violent jerking of the train, the negligence complained of.
    2. Carriers — proximate cause of injury. — Where plantiff, who had been waiting in the-station while the local mixed freight train,on which she was traveling was being .switched, desiring to use a toilet, and seeing none about the station, returned to .the,'caboose, and was injured, while standing’in the aisle, by the alleged violent jerking of the "train, held that her failure to ask the station agent concerning the station toilet was not the proximate cause of the injury.
    3. Negligence — proximate cause op injury. — Unless the negligence of defendant proved was the proximate cause of her injury, there can be no recovery.
    4. Negligence — proximate cause. — To warrant a .finding that negligence was the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence charged, and that it ought to have been foreseen in the light of the attending circumstances.
    5. Carriers — mixed trains. — While local freight trains áre allowed to carry passengers, the primary purpose of such trains is the transportation of freight, and passengers electing to ride on such trains are chargeable with notice -of such fact.
    6. Carriers — operation of mixed trains. — It is matter of common , knowledge that jolting and jarring are incident to the operation of freight trains, and the company is bound to exercise only the highest degree of care that is usually and practically exercised consistent with the operation of trains of that nature.
    7. Carriers — operation op mixed trains. — It is common knowledge that a good deal of switching is necessary when local freight trains stop at a station, and this fact, together with the age and experience in traveling of the passenger, is to be considered in determining whether the passenger .'was negligent in stánding in the aislé of a caboose while the train was being switched.
    8. Carriers — presumption op negligence. — Under Crawford & Moses’ Dig., § 8562, proof of an injury to plaintiff, caused by the operation of a train on wihich she was a passenger establishes a prima facie case of negligence against the carrier.
    9. Carriers — contributory negligence — jury question. — Where plaintiff, an elderly lady, was injured while standing in the aisle of a freight caboose, the question whether she was guilty of contributory negligence held, under the evidence, to. be a question for the jury.
    Appeal from Pike Circuit Court-; B. E. Isbell, Judge;
    reversed.
    STATEMENT OE PACTS.
    Mary Meeks sued the tíraysonia, Nashville & Ash-down Railroad Company to recover damages by reason of being violently thrown to the floor of a car in which she was riding as a passenger, on account of the negligent operation of said train by the defendant. She alleged specifically that the defendant’s negligence con-sistecL in the failure of its agents or employees to couple its train in a reasonably safe manner to tire coach in which she was rightfully riding as a passenger, and to exercise such care in the operation of the train as required by lav. . ,
    Mrs. Meeks was a witness for herself. According to her testimony, she lived at Mineral Springs, Arkansas, and is eighty-two years of age. .On the 21st-day of September, 1923, she. boarded one. of the defendant’s local freight trains at Murfreesboro, Arkansas, to go to her home at Mineral Springs, Arkansas; She had purchased a ticket. After the train reached Nashville sohie one told her that the train would be there quite a while, and it would be better for her to go to the depot and stay there until the train-was through with its switching and ready to depart. The persons who advised her to do this went to the depot with her. After Mrs. Meeks had remained in the waiting-room at the depot for a while, she ‘went back with a colored woman to the caboose in which she had been riding. She was obliged to go, or she would .not have gone. She had gone back to the coach to attend to a. call of nature, because there was no toilet at the depot. After she had come out of the toilet in the caboose she stood in the aisle; talking to the negro woman, for not longer'than five minutes, and was then thrown down by other cars being propelled against the caboose. She was asked what caused her to be thrown down, and answered: “I don’t know; the ears ■ came together. I had started to a seat to sit down, and . I was lifted clear up off of the floor, and it threw me down.” She then described her injuries. She testified that she had enjoyed good health all of her life and was in good physical condition' at the time she was injured. On cross-examination she stated that -she looked for a toilet 'before leaving the whiting-room, and' could not find any. -She went to’ the window of the room -where the a,gent 'usually ¡Stayed, -but did -not see anybody. She then went to the caboose with the' negro woman, as' stated in he'r ‘ examination in chief. ! One ‘of 'the-trainmen had carried her baggage from the caboose to the waiting-room. The negro woman told her that the train, was nearly ready to start, and carried her baggage bach for her when they went to the caboose. Her fall caused a fracture of the long bone of the leg that connects with the hip.
    According to the evidence of the train crew, there was no sudden or violent jar or jolt when the train was coupled with the caboose- in which she was standing at the time she was injured. One of the train, crew had advised her to go to the depot and stay in the waiting-room until the train was ready to depart. The members of the train crew supposed that she was still in the waiting-room when the train was coupled to the caboose.
    The station agent testified-that toilets were provided by the railroad company for white and colored passengers. He denied that Mrs. Meeks made an application to him on the day in question for information concerning the toilet.
    The jury returned a verdict in favor of the defendant, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      Featherston S Featherston and Tom W. Campbell, for appellant.

      J. G. Satin, for appellee.
   HaRt, J.,

(after stating the facts). Counsel for the plaintiff ask for a reversal of the judgment because the court erred in giving instruction No. 5 to the jury at the request of the defendant. The instruction reads as follows: “The court instructs the jury that the law requires railroad companies to furnish toilets for its patrons, and that the plaintiff is charged with knowledge of that fact, and that, if plaintiff - neglected or failed to ask the agent of the defendant for a key or location of the toilet, and, by reason of her failure or neglect to get this information from the agent of the company, but acted on her own volition and thereby received an injury, then the plaintiff would be guilty of negligence, and you will find for the defendant.”

In the first place, this instruction entirely ignores the theory upon which the plaintiff predicated her right of action in this case. In her complaint she alleges that she was injured by the negligence of the defendant in the operation of its train upon which she was riding as a passenger. The particular act of negligence complained of was that the defendant negligently coupled its train to the coach in which she was riding as a passenger, and that she was violently thrown to -the floor.

Moreover, the fact whether or not the defendant had a toilet at the station, and whether or not the plaintiff asked-the agent for a key to said toilet, was not the proximate cause of her injury. It cannot in any sense be said that the failure of the railroad company to comply with the statutory requirement of maintaining water-closets at its passenger depots was shown to be the natural and immediate cause of the injury to the plaintiff.

The rule is well established in this State that, in an action for personal injuries, although the defendant may be shown to have been negligent in some manner, yet, unless the negligence so shown is the proximate cause of the injury complained of, no recovery can be had on account of said injury. It has been uniformly held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence and that it ought to have been foreseen in the light 'of the attending circumstances. Pittsburg Reduction Co. v. Horton, 87 Ark. 576; St. L. & S. F. R. Co. v. Whayne, 104 Ark. 506; St. L., Kennett & S. R. Rd. Co. v. Fultz, 91 Ark. 260; Hays v. Williams, 115 Ark. 406; and Bona v. Thomas Auto Co., 137 Ark. 217.

It is manifest that the failure of the defendant to maintain toilets at its station, as required by statute, was not the proximate cause of the injury to the plaintiff, and that if could not have foreseen that its failure in this respect would have caused the injury complained of by the plaintiff.

The allegation of the complaint is that the defendant was guilty of negligence in the operation of its train upon which the plaintiff was a passenger and thereby caused her injury. The particular act of negligence com-' plained of was that the other cars in the train were hacked against the caboose in which the plaintiff, was riding with such violence as to lift her up and throw her down on the floor. Instruction No. 5 wholly ignored the plaintiff’s theory of the case, and made it the duty of the jury to find for the defendant upon facts which were not the proximate cause of the injury. Hence it was necessarily prejudicial to the rights of the plaintiff.

In view of another trial, we deem it necessary f,o state that the degree of care required in the operation of: freight trains which, by law, may carry passengers, was not correctly stated in the instructions given at the •request of. the plaintiff. "While local freight trains are allowed to carry passengers, the primary purpose of such trains is the transportation of freight. Their equipment therefore is adapted to such business, and those of the traveling public electing to ride on mixed trains are charged with knowledge of such facts. It is a matter, of common knowledge that jolting and jarring, are incident to the operation of freight trains, and therefore the company is bound to exercise only the highest degree of care that is usually and practically exercised consistent with the operation of trains of that nature.

In this connection it may be also stated to be a. matter of common knowledge that a good deal of switching is necessary when local freight trains stop at a station, and this fact, together with the age and experience in traveling of the passenger, are to be considered in determining whether she is gnilty of contributory negligence in standing in the aisle and talking to a fellow traveler. St. L. I. M. & S. R. Co. v. Brabbzon, 87 Ark. 109, and cases cited; St. L. I. M. & S. R. Co. v. Hartung, 95 Ark. 220; Rodgers v. Choctaw, Okla. & Gulf Rd. Co., 76 Ark. 520; and Pasley v. St. L. I. M. & S. R. Co., 83 Ark. 22.

In Pasley v. St. L. I. M. & S. R. Co., 83 Ark. 22, it was held.that, while it is not practical to operate freight trains without occasional jars and jerks calculated to-throw down and injure careless and inexperienced persons standing in the car, jars of great, unusual and unnecessary violence would he evidence of negligence on the part of the trainmen.

The injury to plaintiff was caused by the operation of the train of the defendant, and, under our statute, proof of this fact made a prima fade case of negligence against the railroad company. ■ Crawford & Moses’ Digest, § 85:62, and cases cited in foot-note: The defendant attempted to overcome the prima facie case in favor of the plaintiff by introducing witnesses who testified that the coupling of the rest of the train to the caboose in which'the plaintiff was standing at the time she was hurt was not accompanied by any unusual jolt or jar, and in fact was a very easy coupling.

On the other hand, the evidence for the plaintiff tends to show that, while she was eighty-two years old, slie had been in good health all of her life, and was a sturdy old woman. She had left the closet, and had only been standing in the aisle a' few minutes 'when the accident occurred. She was talking to a negro woman who-had conducted her from the' station to where the caboose was standing. As the plaintiff expressed it, she had started to her seat when she was “lifted clear up off the floor’,’ and thrown down when the rest of the train was coupled to the caboose. ’ '

The jury might have legally inferred from the evidence for. the plaintiff that the train was coupled together with a jar of'great, unnecessary and'unusual violence. If the evidence for the plaintiff was legally sufficient, if' believed by the jury, to warrant a verdict in'her favor, we are not concerned upon appeal as to where the weight of the evidence was. This was a question for the trial court in determining whether or not a new trial should be granted. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428.

It is true that the plaintiff would not likely have been hurt if she had been in her seat, but, under the circumstances as detailed by her, the question of whether she was guilty of negligence was a proper one to have been submitted to the jury.

■ For the error in giving instruction No. 5 at the request-of the defendant the judgment will be reversed, and the cause remanded for a new trial.


author: Haht, J.,

text:
    Saxon v. Barksdale.
    Opinion delivered May 25, 1925.
    1. Master and servant — safe place to work. — An employer. furnishing- -completed scaffold for employees to work on must see that it is reasonably safe for the purpose intended.
    2, Master and servant — defective scaffold. — -Where plaintiff and two other employees were furnished suitable material to build a scaffold for their work, the fact that the others were negligent in constructing it, causing injury to plaintiff, did not render the employer liable.
    Appeal from Nevada Circuit Court; J. H. McGollmt, Judge;
    reversed.
    STATEMENT OE EAOTS.
    This was an action by E. J. Barksdale against R, L. Saxon and J. R. Lockhart to recover damages for injuries sustained by the plaintiff from the fall of a scaffold upon which he was working upon the premises of the defendant, R. L. Saxon.
    E. J. Barksdale was a witness for himself. According to his testimony, he is a carpenter, forty-six years of age, and was employed to work for Dr. R. L. Saxon in June, 1923. J. R. Lockhart was tire foreman of Dr. Saxon. ¿Barksdale, together with Stanley Burger and Ed Eaves, went to work for Dr. Saxon on Monday, and were injured on the following Wednesday by the falling of the scatfold on which they were standing at work. ■ Barger and Eaves built the scaffold upon which they were working-. They first made what is called a liorse of 2 x 4 lumber. They placed 2x8 lumber on these wooden borses, and in this wáy built a scaffold upon which to work. They first commenced to work in the lobby of the hotel, which was owned by Dr. Saxon. They then removed their scaffold to the dining-room, and it became necessary to cut off the legs of the wooden horses, because the ceiling in the dining-room was six or eight inches lower than the lobby ceiling. After they got through in the dining-room, they carried their scaffold back in the lobby to work there again. It was necessary to build up the scaffold six or eight inches higher in order to work on the ceiling. This was done by nailing pieces on the legs of the wooden horses. The carpenters were engaged in- putting beaver boards on the ceiling- of the lobby at the time the scaffold fell and injured all three of the workmen. The plaintiff had nothing to do with building the ' scaffold upon which they worked, but he was working with the other two carpenters at the time it was built. The materials .for constructing- it were furnished by Dr. Saxon.
    A brother of the plaintiff testified that there was a knot in the plank which formed one of the legs of one of the wooden horses, and that this caused the leg to break and thereby let the scaffold fall. This happened unexpectedly, and the fall of the scaffold caused the injury to the plaintiff upon which he based his cause of action.
    The case was tried before a jury, which returned a verdict for the plaintiff, and from the judgment rendered the defendants have duly prosecuted ah appeal to this court.

      H. E. Rouse and Saxon & Davidson, for appellant.

      William F. Denmam, for appellee.
   Haht, J.,

(after stating the facts). As a general rule, where a scaffold or staging is furnished by an employer as a completed structure, he is liable to an employee injured through his failing to furnish a reasonably safe structure as a place upon which to work. So in this case, if the defendants undertook to furnish the scaffold as a completed structure for the plaintiff and his fellow-workmen to work upon, it was their duty to see that it was reasonably safe for the purpose for which it was' intended. Murch Bros. Construction Co. v. Hays, 88 Ark. 292. On the other hand, if the defendants did not undertake to furnish the scaffold ás a completed structure, hut it was the duty of the plaintiff and the other carpenters employed with him to build the scaffold, then the only duty resting upon the defendants was that of using reasonable care in providing suitable materials for the object in view and employing suitable men to do the work. Vulcan Construction Co. v. Harrison, 95 Ark. 588. Numerous other decisions from the courts of last resort of the various States sustaining the general rule may be found in the case-notes to Studebaker v. Shelby Steel Tube Co. (Pa.), 18 Ann. Cas. 611, and Haakensen v. Burgess Sulphite Fibre Co. (N. H.), Ann. Cas. 1913B, 1122.

But, in this case, the scaffold was not a permanent platform furnished by the defendants on which the plaintiff and his fellow-workmen were invited to stand during their work. It was a temporary platform constructed by the workmen themselves, and to be lowered or raised any height by them as the work progressed and as their needs required.

It is true that the plaintiff did not actually help make the staging or scaffold upon which they worked, but he and the other two carpenters who did construct it were all engaged in carrying on the same general work, and no one of them performed duties which did not in some way relate to or affect the safety or the instrumentality with which, or places in which, the others worked. This was a case in which the three carpenters were working together upon the same part of the. building, and it was necessary, as a part of their work, to construct scaffolds to stand upon in doing their work. It does not appear that J. R. Lockhart, as foreman of Dr. R. L. Saxon, interfered in any way or gave any suggestion in the manner of selecting- or fastening the materials together to form the scaffold. This was left to the men engaged in doing the work of repairing the hotel, and the construction of the scaffold was a part of their work. The undisputed evidence shows that the fellow-workmen of the plaintiff were good carpenters and skillful workmen. For aught that appears in the record, there was plenty of good material on hand with which to. build the scaffold. Therefore the defendants were not answerable to the plaintiff for the negligence, if any, of his fellow-workmen in constructing the scaffold which fell and thereby caused his injury.

It follows that the judgment must he reversed, and, inasmuch as the case appears to.have been fully developed, the cause, of action will he dismissed.


author: Hart, J.,

text:
    Western Coal & Mining Company v. Burns.
    Opinion delivered May 25, 1925.
    Master and servant — assumed risks. — An employee assumes the ordinary risks incident to his employment, and such extraordinary risk as is obvious to an ordinarily observant person, or which are patent to one having experience in the business in which he is engaged. ,, • ,
    Master and servant — assumed risk^-jury question. — Whether an' experienced miner assumed the risk of a coal oar crushing his fodt as the result of catching it between the rail of the track and a- wall of rock ibuilit by himself by direction of the foreman held for the jury.
    Master, and servant — safe place to work. — It is the master’s duty to exercise ordinary care to provide a safe working place , for his employees.
    Appeal and error — conclusiveness of verdict. — A verdict based upon substantial, though conflicting, evidence will be sustained on appeal.
    Appeal from Franklin Circuit Conrt, Ozark District; James Cochran, Judge;
    affirmed.

      STATEMENT 03? - TACTS.
    : McKinley Burns instituted this action against the Western Coal & Mining Cosnpany to recover damages for personal injuries sustained by him while in the employment of the defendant.
    McKinley Burns was the principal witness for himself. According to his testimony, he was twenty-seven years of age, and was employed by the defendant to dig coal- for; it in its mine, at the time he was injured, in February, 1923. The plaintiff and Arch Hargrove were working in a double room thirty-six feet wide. It had been driven in seventy-five or one hundred feet from the entry. The room had a track on each side. The plaintiff worked on one side and used one-of the tracks, and Har-grove worked on the other side of the room and used the track on that side. The tracks were about twenty or twenty-five feet apart. It is the duty of the miner, when he digs a car of coal, to push lit out on the track to the entry. When rock falls from the roof or side of the mine, it is thrown to one side until it accumulates to such an extent that it is in the way of the' miner in digging coal. Sometimes the coal digger cleans the rock up and sometimes the company does it. Ed Bobbitt was the foreman of the mine. After a,quantity of rock had fallen in that part of the room in which the plaintiff worked, the foreman came in the room. A large rock had fallen next to the face of the coal where the plaintiff was working, and the latter told his foreman that he was going to load a car of rock and haul it out through the entry. The foreman told him not to do that, but to gob it. This meant that the rock should be piled up in the form of a wall, and, when this was done, it was called a gob wall. The plaintiff thought that the rock should be hauled out because his working place was too narrow for the rock to be piled up in a wall'. The foreman told the plaintiff that it would cost the company too much to have the rock hauled out, and directed him to build a gob wall. The foreman and another employee turned the big rock into position and started the gob wall with it. The plaintiff then piled the other loose rock up, and finished the gob wall. He built the wall as high as his head. After the wall had been finished, he started to push a load of coal out, and had to make a pretty good hill. After he had pushed the car up the hill a little bit, he g’ot his foot wedged between the gob wall and the track. He could not hold the car, so it rolled back on his foot and crushed it. His foot was caught right at the place where the foreman started the gob wall with the big rock. The plaintiff had never paid any particular attention as to how close the gob wall was to the track at this point, and supposed that the foreman knew what he was doing when he started the wall there.
    It was also shown that there was a flange on the coal car which protruded three or four inches from the wheel beyond the rails. A coal miner is controlled by what the mine foreman says about pntting the rock away. The gob wall was pretty close to the rails at the place where the plaintiff was injured.
    The .defendant introduced evidence tending to show that the gob wall was two feet from the rails at the point where the plaintiff claims that he was injured. It also introduced evidence tending to show that the plaintiff knew and appreciated the danger of his work in pushing out- the loaded car of coal, and that, under the facts proved, the plaintiff assumed all the risk of injury from getting his foot caught in the space between the rails and the gob wall.
    The jury returned a verdict in favor of the plaintiff for. the, sum of $1,250, and, from the judgment rendered, the defendant has duly prosecuted an appeal to this court.

      Thomas B. Pryor and Vincent M. Miles, for appellant.

      Dave Pariain,. for appellee.
   Hart, J.,

(after, stating the facts). The sole ground relied upon for a reversal of the judgment is that the court should have directed..a verdict for the defendant on the ground that the plaintiff knew the distance from the rails to the gob wall, and assumed the risk of injury from getting his foot caught in the space between the rails and the gob wall.

The general rule is that an employee assumes the ordinary risks incident to his employment and such extraordinary risk as is obvious to an ordinarily observant person, or which is patent to one having experience in the business in which he is engaged. Mama Coal Co. v. Dodson, 141 Ark. 438; Moline Timber Co. v. McClure, 166 Ark. 364, and Western Goal & Mining Co. v. Nichols, ante, p. 346.

Under the evidence adduced, it cannot be said as a matter of law that the plaintiff assumed the risk of getting his foot caught between the rails and the gob wall while he was pushing out the car of coal. It is true that he was a miner of experience and that he built the gob wall himself; but these facts do not conclusively show that the danger of getting hurt in the manner described by the plaintiff was appreciated by him when he built the gob wall, or that it was so obvious and patent to one of his experience that he will be deemed in law to have known and appreciated it. In the very nature of things the relation of master and servant makes the servant place reliance upon the judgment of the master or the foreman appointed by him to direct the servant about his work. It is the duty of the master to exercise ordinary care to provide a safe working place for his servants. In the case at bar, it became necessary to move the accumulated rock so that the miner could proceed with his work of digging the coal and loading- it on the car. The plaintiff thought it advisable to load the rock on the car and haul it out of the mine. The foreman thought that this would cost too much, and directed the seiwant to pile the rock up and make what is called a gob wall. The foreman took the large rock and started the wall himself. He thereby indicated to the plaintiff that this was a safe distance from the track for the gob wall to be built. It became the duty of the plaintiff to build the gob wall on the-line shown him by his foreman. .It is true that the plaintiff, in building the wall, must have noticed how far the gob wall was from the rails, but we do not think that it should be said as a matter of. law that he: must have anticipated that'he might get hurt in the way the evidence showed he was injured.

It is insisted that, if he had kept his feet between the-rails, he would not have got hurt. This may be true ; but it was the duty of the plaintiff to push the car of coal through- the entry, and, in doing this, he had to push the .car up-grade at one place. It may be that the , car was in danger of slipping back, and that he placed his foot between the rails and the gob wall in order- to better brace himself. 'Be that as. it may, he testified that, in pushing the car of coal up-hill, he placed his foot there, and that it got caught so that, he--could not extricate it, and that the car of coal finally ¡rolled back and crushed his foot. - ■ '

It -is also, true that the evidence for the defendant shows that the gob wall at this place was two feet from the rails, but this evidence is contradicted by the testimony of the plaintiff and of his witnesses. The distance of the gob wall from the track was a ¡question of fact, and the jury was the judge of the credibility of the witnesses, and, by its verdict, evidently believed the plaintiff and his witnesses.-

The testimony of the witnesses for the plaintiff as to the distance between the .rails and the gob wall, and-as to the fact that the plaintiff caught his foot in that space, was as to. matters of which'the witnesses had-personal knowledge.. ■ Their - evidence - was ; necessarily of' a substantial character, and, having been accepted as true by the jury trying the case, we are not' at liberty to reverse or set it aside upon appeal.

It follows that the judgment of the circuit court must be affirmed.