St. Louis, Iron Mountain & Southern Railway Co. v. Funk , 98 Ark. 534 ( 1911 )

Kirby, J.,

(after stating the facts.) It is strongly urged that the trial court should have directed a verdict for the defendant, and that the judgment is not sustained by the evidence. It is conceded that appellee was attempting to board the engine in the line of his duty, but insisted that, since there were two ways open for him to discharge -this duty, one by standing on the track in front of the approaching engine and taking chances upon safely stepping upon an 8-inch toe plate upon the pilot of the locomotive, and the other by standing beside the track and mounting the gangway between the engine and tender, the latter being practically safe, and the other always fraught with more or less danger, as a matter of law he was guilty of such contributory negligence as would preclude his recovery iby attempting to board the train in the more dangerous way, when a safer way was open to his selection at his own option; but under the circumstances of this case that was a question for the jury under proper instructions, and not one of law to be determined by the court. Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11; Kansas City So. Ry. Co. v. Henrie, 87 Ark. 443.

It was the duty of the engineer to slow up or reduce the speed of his engine upon the signal being given, as the uncontradioted testimony shows it to have been, and his failure to do so was negligence. The appellee had a right to rely upon the engineer slowing or reducing the speed of the engine, after the slow signal was given, as was his duty and had been his custom; and when appellee discovered his failure to do so, he was confronted with an emergency, because o.f such negligence, calling for the exercise of his judgment, and the jury found he was not guilty of contributory negligence in failing to discover that the engineer had not regarded the signal until the engine was so close as to frighten and confuse him, and make it necessary to decide whether it was safer to attempt to jump off the track or board the engine, nor in boarding it under the circumstances; and the testimony is sufficient to sustain their verdict. As already said, no Objection to the giving or refusing of instructions is urged here.

The judgment is affirmed.