El Dorado & Bastrop Railroad v. Whatley

Wood, J., (after stating the facts). The court erred in submitting to the jury the question as to whether David Rufus had been warned by appellant of the danger of (riding on the pilot. The uncontroverted evidence is that he was warned of the danger of so riding. The evidence is consistent in itself, and, there being no evidence to the contrary, the court should not have submitted the matter to the jury as if it were a disputed proposition. It is error to submit as issues to the jury matters about which there is no dispute, or to submit questions upon which there is no evidence. Maddox v. Reynolds, 72 Ark. 440; St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489; Pacific Mut. Life Ins. Co. v. Walker, 67 Ark. 147; St. Louis, I. M. & S. Ry. Co. v. Denty, 63 Ark. 177; St. Louis, I. M. & S. Ry. Co. v. Sweet, 63 Ark. 563; St. Louis, I. M. & S. Ry. Co. v. Woodward, 70 Ark. 441; St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136; Fordyce v. Key, 74 Ark. 19; Davis v. Richardson, 76 Ark. 348; Frank v. Dungan, 76 Ark. 599; St. Louis S. W. Ry. Co. v. Knight, 77 Ark. 20; St. Louis, I. M. & S. Ry. Co. v. Fambro, ante p. 12. A failure to warn was one of die grounds of negligence charged, and submitting it as a question for the jury when there was no evidence to support it, and when the evidence was all to the contrary, was misleading and prejudicial. See cases supra. In prayers numbered nine and ten given at the instance of appellee, the court in effect told the jury that if it was the custom for employees of appellant to ride the pilot in violation of the rules of the company, and the superior officers of the appellant knew of such custom and permitted it, then David Rufus was not guilty of contributory negligence in also riding the pilot. That is not the law. Although it may have been the custom of other employees of appellant to ride the pilot, of which custom appellant was cognizant, still that would' not relieve David Rufus of the charge of contributory negligence in riding the pilot, if the danger of doing so was so imminent and obvious that no prudent man under the circumstances would undertake it< If the danger were of that character, it could not excuse Rufus from the consequences of his negligent act because forsooth other employees were as imprudent as he. It is proper to consider the custom in connection with the other evidence in determining the question of the contributory negligence of Rufus, but not to make 'that custom1 a criterion of his conduct, and deciare as a matter of law that, because it was the custom for other employees to ride the pilot with the knowledge of appellant’s superior agents in charge, he might do so too without being subject to the charge of contributory negligence. The Supreme Court of Alabama says: “Custom and usage may be relied upon to excuse the violation of a rule when the act involved is not negligent in itself, but only by relation to the rule violated; and so, when an act may be done in two or more ways, a resort to neither of which involves such obvious peril as raises the legal presumption or conclusion of negligence in the doing of it, a custom or usage to do it in a particular way may be looked to as tending to show that it was not negligence to resort to that method in the instance under consideration. But custom can in no case impart the qualities of due care and prudence to an act which involves obvious peril, which is voluntarliy and unnecessarily done, and which the law itself declares to be negligent.” (Citing authorities.) Warden v. L. & N. R. Co., 14 L. R. A. 552. Appellant’s counsel have cited several cases where, under the circumstances peculiar to those cases, it was declared, as matter of law, to be contributory negligence for the employee to ride the pilot or in other place of obvious danger. We have examined the cases, and it could serve no useful purpose to review them here. Suffice it to say that the facts in those cases distinguish them from this. Here a boy about sixteen years of age is employed about the yards of appellant company as a brakeman, and was engaged at the time of the accident in switching cars, making up the train. The engine upon which he was riding at the time was going slowly, but faster than a man walks. He was riding on a piece of board on the side of the pilot .that was placed there to keep the feet from slipping while employees stood there to open the knuckle to the coupler. It was there for the employees to stand upon while doing that work. It seems that the “piece” or board was a continuation of the steps on the side of the engine. Other brakemen, while engaged in the same work and while being transferred about the yards, rode in .this place on the pilot, and did so constantly, and the superior agents of appellant in charge knew that they did so. Under these circumstances, we do not think that it should be held, as matter of law, that the act of young Rufus in so riding was contributory negligence, notwithstanding he was told that it was against the rules of the company and was warned that it was dangerous. The habitual violation of the rules by other employees with the apparent acquiescence of appellant was well calculated -to lead young Rufus to conclude that the rules upon the subject were not considered of sufficient importance to be enforced, and that neither the brakeman, nor the superior servants of appellant regarded riding the pilot as dangerous. Upon the facts of this case reasonable minds might reach different conclusions as to whether the danger of riding the pilot was such an imminent and obvious one that no prudent man would undertake it. We are of the opinion that both the questions of the negligence of appellant and the contributory negligence of David Rufus were those of fact to be submitted to the jury under proper instructions. The court did not err therefore in refusing appellant’s first prayer for instructions. The court erred in instructing the jury on its own motion tc find for the plaintiff if it found that he used ordinary care. This instruction, standing alone, was well calculated to cause the jury to believe that only plaintiff’s conduct was under consideration, whereas it was necessary to find negligence on the part of appellant before the contributory negligence could be inquired into or operate as a defense. The instruction was incomplete, misleading and prejudicial. The court also erred in giving appellant’s seventh prayer as modified. The modification destroyed the effect that should be given to contributory negligence, if found, and rendered the whole instruction contradictory and meaningless. For the errors indicated the judgment is reversed, and the cause is remanded for new trial.