{ "id": 1360472, "name": "Presson v. Vail Cooperage Company", "name_abbreviation": "Presson v. Vail Cooperage Co.", "decision_date": "1922-10-30", "docket_number": "", "first_page": "424", "last_page": "429", "citations": [ { "type": "official", "cite": "155 Ark. 424" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "161 Mass. 153", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 797244 ], "opinion_index": -1, "case_paths": [ "/mass/161/0153-01" ] }, { "cite": "134 Ark. 491", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1573278 ], "weight": 2, "pin_cites": [ { "page": "563" } ], "opinion_index": -1, "case_paths": [ "/ark/134/0491-01" ] }, { "cite": "54 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1320346 ], "opinion_index": -1, "case_paths": [ "/ark/54/0289-01" ] }, { "cite": "158 N. Y. 34", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 44004 ], "opinion_index": -1, "case_paths": [ "/ny/158/0034-01" ] }, { "cite": "47 L. R. A. 383", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "10 Ohio 145", "category": "reporters:state", "reporter": "Ohio", "case_ids": [ 588075 ], "opinion_index": -1, "case_paths": [ "/ohio/10/0145-01" ] }, { "cite": "2 Ga. 349", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1372731 ], "opinion_index": -1, "case_paths": [ "/ga/2/0349-01" ] }, { "cite": "100 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312236 ], "weight": 3, "pin_cites": [ { "page": "50" } ], "opinion_index": -1, "case_paths": [ "/ark/100/0037-01" ] }, { "cite": "100 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312236 ], "opinion_index": 0, "case_paths": [ "/ark/100/0037-01" ] } ], "analysis": { "cardinality": 519, "char_count": 9545, "ocr_confidence": 0.503, "pagerank": { "raw": 9.088029550571308e-08, "percentile": 0.5056343053205032 }, "sha256": "3d114ad1d78f27abe53e3adce542bc7803122804774c6304af99a59a035739cc", "simhash": "1:2e7d9e22b8acf8c1", "word_count": 1633 }, "last_updated": "2023-07-14T16:22:10.433219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mr. Justice Smith dissenting." ], "parties": [ "Presson v. Vail Cooperage Company." ], "opinions": [ { "text": "Humphreys, J.\nThis suit was instituted by appellant against A. J. Yail, doing business under the name of Yail Cooperage Company, to recover damages in the sum of $3,000 for an injury received while attempting to couple a standard flat-car to an engine, through the alleged negligence of appellee. Appellant alleged that he was an employee of appellee as fireman and brakeman, that appellee was a common carrier, and as such negligently failed to supply him with sufficient machinery to perform his duty, and negligently furnished him a defective engine and other appliances and equipment. The allegations bring the suit within act 88 of the Acts of the General Assembly of 1911, which was entitled, \u201cAn act regulating liability of employers for injuries to employees.\u201d\nThe cause was submitted upon the pleadings and testimony, at the conclusion of which the court, over the objection and exception of appellant, peremptorily instructed the jury to return a verdict for appellee. The jury complied with the direction, and the judgment was rendered in accordance therewith.\nFrom the instructed verdict and judgment an appeal has been duly prosecuted to this court. Appellants insist that the court erred in finding, as a matter of law, that appellee was not a common carrier within the meaning of act 88, Acts of the Legislature of 1911. It is argued that section 4 of the act, now section 7141 of Crawford & Moses\u2019 Digest, changes the meaning of \u201ccommon carrier \u2019 \u2019 as defined by this court, so as to make a person operating a train or log-road, upon rails or tracks, in whole or in part in this State, a \u201ccommon carrier\u201d or \u201ccommon carrier by railroad,\u201d whether he operates it as owner, contractor, lessee, mortgagee, trustee, assignee, or receiver. The majority of the court do not think the general definition of a \u201ccommon carrier\u201d or a \u201ccommon carrier by railroad\u201d was modified or changed by the act. Had the Legislature intended to enlarge the general definition of \u201ccommon carrier,\u201d so as to include logging railroads, it would not have used the words \u201ccommon carrier\u201d in the defining clause. The word cannot be defined by the use of the word itself.. The intention of the apt was to bring common carriers, as generally defined, operating railroads wholly in this State, under the terms and provisions of the act. In other words, the intention was to impose liability upon any common carrier, operating a railroad in whole or in part in this State, for personal injuries resulting to an employee occasioned through the negligence of employer or its representatives, in the various ways set out in the act, even though the employee was guilty of contributory negligence, or knew of the dangers incident to the master\u2019s negligence. The act eliminated the defenses of contributory negligence and assumed risks in .actions brought under its. provisions. Again, appellant argues that the testimony introduced by him not only tended to show that appellee was a common carrier within the general definition, but also tended to show negligence on the part of appellee as defined by the act. A general definition of \u201ccommon carrier\u201d was correctly announced in the case of Arkadelphia Milling Co. v. Smoker Merchandise Co., 100 Ark. 37. It is as follows: \u201c In order to constitute one a common carrier,, the business as such must be regular and customary in its character, and not casual only. An occasional undertaking to carry goods will not make one a common carrier. But the business of carrying must be conducted as a business, and must be of such a general and public nature that a' person carrying it on is bound to convey goods of all persons indifferently who offer to pay for the transportation thereof.\u201d The record reflects that appellee owned and operated a railroad of standard gauge, with steel rails laid on cross-ties; that he owned and used three engines, \u201cdollie\u201d and flat-cars, also used standard flat-cars of a connecting line; that the railroad was about ten miles in length, including two branches; that he operated the railroad primarily to haul logs to his mill at Marmaduke, but he hauled freight for others.\nAppellant testified, in substance, that the business of the railroad was to haul for people out on the line and for people in town; that they hauled logs, lumber, groceries, hay and a general routine of stuff that came to be hauled, and received pay for hauling same.\nJ. C. Golden testified that, as manager of the Melon Growers\u2019 Association, he shipped twenty or thirty cars of melons over the railroad owned by Yail, for which he paid $15 a car.\nWill Carpenter testified that he shipped from fifteen to twenty cars of hay and corn over the Yail railroad in one year, for which he paid $15 a car..\nAlfred Moore, Henry Yanderbuilt, Walter Chaney,Nathan Cohn and Ed Franks testified that the company hauled logs for itself and logs, lumber and freight for others.\nFloyd Deck, who was the engineer for the company during a period of ten months, testified that, as far as he knew, Yail did a general hauling business over his railroad.\nThe testimony detailed above tended to sh\u00f3w that the hauling was indiscriminately done, and was of a public nature. Testimony was introduced by appellee to the contrary.\nUnder the testimony, the question of whether the Vail Cooperage Company was a \u201ccommon carrier\u201d became a question of disputed fact, and should have been submitted to the jury for determination.\nThe testimony introduced by appellant tended to show that the injury was caused by the failure of appellee to furnish a properly equipped engine and necessary appliances to couple a standard flat-car to the engine. The statute made it negligence for a \u201ccommon carrier,\u201d operating a railroad upon rails or tracks, not to do this, and the question of whether the company was negligent in this regard should have been submitted to the jury along with the other question of whether it was a \u201ccommon carrier.\u201d\nOn account of the error indicated, the judgment is reversed and the case remanded for new trial.", "type": "majority", "author": "Humphreys, J." }, { "text": "Mr. Justice Hart\nconcurs in this opinion upon the ground that the purpose and intent of the statute was to make logging railroads, carrying freight for others, common carriers, in matters of injury to its employees, without requiring injured employees to make proof of the character of business done by them.\nMr. Justice Smith dissenting.", "type": "concurrence", "author": "Mr. Justice Hart" } ], "attorneys": [ "R. E. Fuhr, J. M. Futrell and Jeff Bratton,. for appellant.", "Block & Kirsch, for appellee." ], "corrections": "", "head_matter": "Presson v. Vail Cooperage Company.\nOpinion delivered October 30, 1922.\n1. Master and servant \u2014 injuries to employees of carrier \u2014 defenses. \u2014 Acts 1911, No. 88, eliminating the defenses of contributory negligence and assumed risk in actions for personal injuries by employees of common carriers, did not enlarge the general definition of a \u201ccommon carrier\u201d so as to include logging railroads.\n2. Carriers \u2014 definition.\u2014In order to constitute one a common carrier, his business must be regular and customary and of sueh a general and public nature that- a person carrying it on is bound to convey goods of all persons indifferently who offer to pay for the transportation; an occasional undertaking to carry goods not being sufficient.\n3. Master and servant \u2014 questions for jury. \u2014 In an employee\u2019s action for injuries received while attempting to couple a standard flat-car to an engine, the question whether the defendant operating a logging railroad was a \u201ccommon carrier,\u201d and if so whether defendant was negligent in failing to furnish prop-, erly equipped engine and necessary appliances held for the jury.\nAppeal from Greene Circuit Court, First Division; S. V. Neely, Judge;\nreversed.\nR. E. Fuhr, J. M. Futrell and Jeff Bratton,. for appellant.\n1. As a matter of law, act 88, Acts 1911, \u00a7 4, C. & M. Digest, \u00a7 7141, appellee is a common carrier, and the court should have so declared.\n2. If it he conceded, for the sake of argument, that the definition of a common carrier remains as defined prior to the passage of that act, then it was a question for the jury, under, proper instructions, whether or not appellee is a common carrier. 100 Ark. 37; 2 Ga. 349; Angel\u00ed on Carriers, \u25a0\u00a7 870; Hutchinson on Carriers, \u00a7 68; 5 Rawle (Pa.) 179; 10 Ohio 145; 47 L. R. A. 383; 158 N. Y. 34.\n3. The case should have gone to the jury under Crawford & Moses\u2019 Digest, \u00a7 8575, which is cumulative to laws existing at the time of its enactment, abolishes the fellow-servant doctrine in suits' against railroads, and makes contributory negligence no longer a bar to recovery unless greater than that of the defendant.\n4. Appellee was liable under the common law in failing to furnish appellant suitable tools and instruments for the work in which he was engaged, and this was a question of liability that should have been submitted to the jury. As to the question of assumption of risk, the evidence fails to show that, the appellant knew and appreciated the danger; at any rate there was a question for the jury on that issue. 54 Ark. 289: 67 Id. 209; 107 Id. 512; 116 Id. 284.\nBlock & Kirsch, for appellee.\n1. There is nothing in \u00a7 4, act 88, Acts 1911, relied on by appellant, that changes the meaning of the term \u201ccommon carrier\u201d as defined by this court, but only makes specific the fact that one engaged in the business of common carrier, as that term is generally defined, comes within the purview of the act. For definition, see 100 Ark. 37; 123 Id. 50; 4 R. C. L. 546. Under the proof in this case appellee is not a common carrier, and the above statute is not applicable.\n2. Appellant assumed the risk. 134 Ark. 491; 135 Id. 563; 62 Id. 11; 44 Id. 293; 56 Id. 232; 161 Mass. 153." }, "file_name": "0424-01", "first_page_order": 448, "last_page_order": 453 }