{
  "id": 1521442,
  "name": "Ultima Thule, Arkadelphia & Mississippi Railroad Company v. Benton",
  "name_abbreviation": "Ultima Thule, Arkadelphia & Mississippi Railroad v. Benton",
  "decision_date": "1908-05-18",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "Ultima Thule, Arkadelphia & Mississippi Railroad Company v. Benton."
    ],
    "opinions": [
      {
        "text": "Hill, C. J.\nThe undisputed facts are as follows: Crouch was an employee of the railroad, being the foreman of a-track-laying crew, working seventeen miles from Dalark. The railroad company carried the construction crews to and from their work on its trains. It used flat cars upon which there were no. seats, and the employees were accustomed to sit on the sides, \u25a0with their feet hanging over. The employees frequently carried wood on the train, and threw it off as they approached their respective residences.\nCrouch was riding on. the train, with' his legs dangling off the side of a flat car, when one of the employees threw some wood off the car, and one .stick rebounded and struck him on the leg, causing serious injury, and probably his death. His administrator sought to recover, and did so, in the lower court, upon the theory that he was a passenger, and that the company must protect him as such, and that it was negligent in its duties to its passengers on this flat car in permitting other employees to throw off sticks of wood.\nIf all of the appellee\u2019s contentions be conceded, still he is not entitled to recover. \u201cIt is generally held that, in order to warrant a finding that negligence * * * is the proximate cause o'f \u00bfn injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.\u201d Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S. 469; Scheffer v. Railroad Company, 105 U. S. 249; St. Louis, I. M. & S. Ry. Co. v. Bragg, 69 Ark. 402. See also Railway Company v. Fire Association, 55 Ark. 163.\nThe question of proximate cause is ordinarily one of fact for the jury. But where the facts are undisputed, and not-such as reasonable men would likely draw different conclusions from, then it is a question for the court; and such is this casef\nThe rebound of a stick of wood thrown from a flat car in such a way as to strike the legs of.a man sitting upon the car is an accident, pure and simple, and not one of the consequences that \u201cought to have been foreseen in the light of the attending circumstances\u201d in permitting employees to occasionally throw wood from the train.\nThe judgment is reversed and dismissed.",
        "type": "majority",
        "author": "Hill, C. J."
      }
    ],
    "attorneys": [
      "Pml G. Matlock and Hardage & Wilson, for appellant.",
      "R. C. Puller and Thornton & Thornton, for appellee."
    ],
    "corrections": "",
    "head_matter": "Ultima Thule, Arkadelphia & Mississippi Railroad Company v. Benton.\nOpinion delivered May 18, 1908.\n1. Negligence \u2014 proximate cause. \u2014 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 or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. (Page 291.)\n2. Same \u2014 when question Eor court.. \u2014 While the question of proximate cause is ordinarily one of fact for the jury, yet where the' facts are undisputed, and not such as reasonable men would draw different conclusions from, then it is a question for the court. (Page 291.)\n3. Master and servant \u2014 accidental injury. \u2014 Where an employee of a railroad company, while riding upon a flat car, was injured by the rebound of a stick of wood thrown by a fellow servant, such injury was accidental, and not one of the consequences that ought to have been foreseen in the light of the attending circumstances in permitting employees to throw wood from the train. (Page 291.)\nAppeal from Dallas Circuit Court; Henry W. Wells, Judge;\nreversed.\nPml G. Matlock and Hardage & Wilson, for appellant.\n1. The act of negligence charged was not the proximate cause of the injury, and there can be no recovery. 76 Ark. 436.\n2. Cooper and Crouch were fellow sercants. Besides, the deceased assumed the risk. 58 Ark. 125; 41 Id. 542; 41 Id. 382.\n3. Deceased was guilty of contributory negligence. Negligence is a question of law and fact. 41 Ark. 542; 76 Id. 520.\n4. He was not- a passenger. 83 Ark. 22; 78 Id. 505; 76 Id. 106; 65 Id. 65.\nR. C. Puller and Thornton & Thornton, for appellee.\n1. Deceased was a passenger. \u201cThe weight of authority and sound policy, we think, is that when a servant performs all of his -work at a fixed place, and the master, either by custom or as a gratuity, carries him to and from his work, the servant doing no service for the master on the train, he is to be treated as a passenger.\u201d 58 S. W. Rep. p. 863; 59 Pa. St. p. 246; 7 Ind. 436; 166 Mass. 492; 38 Atl. 524; 63 Md. 433; 43 C. C. A. ' 19; 177 Mass. 365; 182 Pa. 479; 105 Tenn. 460; 108 Ky. 392; 32 Mo. App. 61; 5 Ind. 339; 19 Rep. 494; Hutchinson on Carriers, \u00a7 564; 33 Md. 542; 8 Kans. 505; 6 E. Ry. & Can. Cases; 5 Duer, 39; Whittaker\u2019s Smith on Negligence, p. 312.\n2. The verdict is amply sustained by the evidence."
  },
  "file_name": "0289-01",
  "first_page_order": 311,
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