St. Louis Southwestern Railway Co. v. Anderson

Hart, J., (after stating the facts). It is insisted bv counsel for the defendant that the testimony is not sufficient to warrant a finding by the jury that the plaintiff was engaged in interstate commerce at the time he was injured. The testimony on that point most favorable to the plaintiff is the following: . Illmo, Missouri, is a station on defendant ’>s line of road where five switch crews work at night. The plaintiff at the time he was injured was engaged in coupling a car, marked “bad order,” to a coal car which had a card on it on which were the words, “Bush, Illinois.” One of the witnesses for the defendant said that the train from which this car was taken came in from Poplar Bluff, Missouri, or Baragould, Arkansas, and that the train always had cars from points outside of the State of Missouri. Another witness for the defendant stated that Bush, Illinois, was in the mining district and that, nearly all the coal cars which arrived at Illmo were consigned to some point in the coal mining district in Southern Illinois. Another witness testified that at the time Anderson was injured he was engaged in breaking up a train and making up one, and that the coal car in question was billed to Illmo .and listed to him for the mines in southern Illinois. The plaintiff himself testified that at the time he was injured he was rounding up the coal cars to put them in the train under directions from the yardmaster and that the destination of the train was to the coal mines in Illinois. There was also testimony from which the jury might have inferred that the train which brought in the cars came from the State of Arkansas. (1) Under this state of facts the jury was warranted in finding that the work the plaintiff was eng-aged in at the time he received his injuries was interstate commerce within the meaning’ of the act. (2) In the case of North Carolina Railroad Company v. Zachary, 232 U. S. 248, the court said that the hauling of empty cars from one State to. another is interstate commerce within the meaning of the act. See, also, St. Louis & S. F. Rd. Co. v. Conarty, 106 Ark. 421. 'It is nest contended by counsel for tbe defendant that tbe court erred in giving instruction No-. 1, but in this contention we do not agree with them. The third section of tbe Employers ’ Liability Act contains the following language: “Tbe fact that tbe employee may have been guilty of contributory negligence shall not bar a recovery, but tbe damages shall be diminished )by the jury in proportion to tbe amount of negligence attributable to such employee.” (3) Under this section tbe rule approved by tbe Supreme Court of tbe United States is that the rule of proportionate negligence applies, that is, that where the negligence of the employer does not consist in tbe violation of a statute tbe contributory negligence of the employee operates in diminution of tbe damages so that tbe recovery shall be only tbe proportionate amount, bearing the same relation to tbe full amount as tbe negligence attributable to the employer bears to tbe entire negligence attributable to1 both. Tbe section also contains tbe following provision: “Provided, that no such employee who may be injured or killed ¡shall he held to have been guilty of contributory negligence in any case where tbe violation by such common carrier of any statute enacted for the safety of employees contributed to tbe injury or death of such employee. ’ ’ (4) So, according to tbe evidence adduced by the plaintiff, he was injured on account of a defect in tbe automatic coupler in violation of the safety appliance act. The Supreme 'Court of the United States has held that tbe question of comparative negligence does not arise where tbe negligence of tbe carrier consists in tbe violation of a Federal statute, for in such cases tbe defense of contributory negligence is entirely abrogated by tbe provision of the act above quoted. Grand Trunk Western Railway Co. v. Lindsay, 233 U. S. 42. Finally it is insisted by counsel for tbe defendant that the court erred in refusing to give instruction No. 6 requested by it. Tbe instruction is as follows: “Tbe jury is instructed that if there were two ways for the plaintiff to perform his duty in coupling the cars, and one was more dangerous than the other, and he voluntarily chose the more dangerous way, and was thereby injured, when, by using the less dangerous way, he would not have been injured, he assumed the risk in so choosing, and your verdict will be for the defendant. ’ ’ (5) This contention has been decided adversely to the defendant in Choctaw, Oklahoma & Gulf Rd. Co. v. Thompson, 82 Ark. 11. See, also, Kansas City So. Ry. Co. v. Henrie, 87 Ark. 443. In the Henrie case, the court said: “When safety coupling appliances have not been provided, or where those provided have got out of repair, and it becomes necessary to couple cars without them, it is always a question of fact for a jury to determine, under the particular circumstances of each case, whether an employee who went between cars to couple them was guilty of negligence in so doing. It is not correct to say, as a matter of law, after ¡balancing the chances, that an employee was necessarily guilty of negligence because he selected a method of doing 'his work which turned out to be the more dangerous way. This, as we have already said, is to make the servant the insurer of his own safety, notwithstanding the fact that the master has failed to discharge his duty. ’ ’ It follows that the judgment must be affirmed.