dissenting. The complaint in this case alleges “that Geo. C. Golden, in the line of his employment, and under the direction of the agent who was in charge of said rock quarry, was on board of a hand-car proceeding* from said rock quarry over the defendant company’s railroad to Ravenden, a station in Lawrence county, Ark., when said Golden was, by the negligence of defendants and its servants, run over by a freight train running on said defendant comfany's railroad, and, without fault or negligence on his fart, then and there killed.'' Thus it would stand, omitting the formal parts and the three separate assignments setting forth the specific acts of negligence. The company,without in any manner objecting to the complaint, answers, and “denies that said deceased Geo. C. Golden was run over and killed by or through the negligent acts of defendant or its servants;'' then denying specifically the several assignments of negligence as alleged in the complaint.
Witnesses on behalf of appellant testified among other things as follows : Locomotive engineer : — “ That the practice was to sound the whistle when the flag was out for danger; that they always answered with a whistle when the flag was out for danger, and slowed down; that he saw no such signal that day; that, had there been signals out at the quarry, would have slowed up.” And on re-direct examination : “If there was no danger at the quarry, signals would not be put out.”
And the Fireman, on direct examination: “If there had been a signal flag placed out at the quarry, we would have whistled when approaching the quarry; if a flag had been out, it would have been on the right hand side of the track, to attract our attention, a green flag to slow up and a red flag to stop ; if we had seen one, we would have whistled.” On cross-examination : “I saw no signal when we came by the quarry. Signals are not allowed, unless obstructions are on the track. Signals should be placed out if anything is on the track. It would be the duty of the man obstructing the track, or finding it obstructed, to put out signals. It would be the duty of the man who had charge of the quarry to regulate the signals. The signal would be placed fifteen telegraph poles from the point of danger. The telegraph poles are about 175 feet apart. Caution signals are only given to slow up the train.” And on re-direct examination: “It simply slowed down when signal was g-iven. To slow down is to slack the speed so that the train is under the control of the engineer, in case there was rock on the track. It was not required to whistle at the quarry.”
The evident purpose of this testimony was to exculpate appellant from the charge of negligently killing young Golden, an employee at the rock quarry, who, under the direction of the foreman of said quarry hands, was at the time on a hand-car a half mile away from the quarry, but proceeding- to Ravenden on business pertaining- to the quarry. This was the subject-matter of the inquiry. It was the province of appellant to introduce this proof, and it did so without objection on part of appellee. But it was not its province to limit the application of the rules it discloses to the quarry spot, and say, Tinos far they afflied, but not to a half-mile, or any other distance, beyond; nor is it its province to say that a hand-car was not contemplated as an obstmoction, within the purview of these rules. These were questions for the jury, under the instructions of the court. The apppellant should be held to respond to every phase of the issue which this proof in connection with all the other proof in the case raises, namely:
1. If the jury concluded that such. rules as were thus shown applied to hand-cars, as obstructions, and were intended to protect all the quarry men, including those working immediately at the quarry, as well as those passing to and from Ravenden, and on the track in the vicinity of the quarry, and engaged in work pertaining to the quarry, then they were justified in saying that the foreman was negligent in not seeing that proper signals were placed on this occasion, warning passing trains of the danger ahead.
2. Should the jury conclude that these rules were not intended to apply to hand-cars, and the men required to be on them, going to and from Ravenden to make the necessary reports of the work at the quarry, then it would appear that the company had no rules for their protection, and the question would recur as to the negligence of the company in failing to make some reasonable rules for their safety.
To my mind there is no avoiding the responsibility for the negligent death of Golden, it matters not which iihorn of the dilemma ” the appellant takes. If the rules as proven applied to hand-cars, and were intended to afford protection to the men who were required to propel them, then the foreman, whose duty it was to “look after the signals,” should have seen that caution or danger signals were properly placed ; and in failing to take this precaution he was guilty of negligence, for which the company was liable. In coming to this conclusion, I assume, of course, that there was proof to show that he was the company’s vice-principal, and I think there was ample proof to justify the jury in so finding-. He was in charge of thirteen or fourteen men, having entire control over them, hiring and discharging at his pleasure; they were engaged in a dangerous work, getting out riprap, loading same, switching cars, etc. for that purpose, and constantly required to be on and about the company’s track where five or six trains were passing daily. That the duties incumbent upon him to put out signals of danger, etc.., providing for the safety of the men at work, were master’s duties, there can be no question. If the rules, as proven, did not apply for the protection of the men on the hand-car, then the awful sequence of that ride to Ravenden on that day demonstrated the necessity for some such reasonable regulations.
A quarry two and a half miles from telegraphic communication, thirteen or fourteen men at work, any of them subject to be called at any time to propel a hand-car to Ravenden, on a track containing curves and where trains were liable to come along at any time at the rate of twenty-five or thirty miles per hour, demanded, it seems to me, some rules for their protection.
The precautionary steps taken by the foreman on this occasion were entirely insufficient to meet the necessities of the case ; and if he be left without any definite rules, to improvise such measures as each exigency may call for, the company should be held liable where he negligently fails to do his duty. It would seem, from the evidence, that Golden had a right to suppose, when he consented to go upon this perilous journey, that trains would whistle when they passed the quarry, and he would thus be notified of their approach ; for one witness testified that the foreman said that was a rule of the company; and another, that trains generally whistled when they passed the quarry.
The foreman put this young man, of three days experience, on the front of the car, standing with his back to the direction in which it was going, and told him “ to look out,” that the train was liable to come along at any time, and put him where he could see it; yet it appears from the evidence that a train came dashing around a curve at the rate of twenty-five or thirty miles an hour, and was within 500 feet of them before any of them saw it. And so great was the consternation, even of the foreman, with all his experience, at the sudden and unexpected appearance of the fast moving freight, he exclaimed, 1 ‘ My God, boys! There’s the train. Throw on the brakes! ” One of the witnesses testified that appellee either fell off on his back, or jumped off backwards and fell on his back on the track. The jury were justified in concluding that this sudden stopping of the hand-car threw the young man backwards on the track, which was a reasonable and natural explanation of the inextricable attitude in which he was placed. So that the simple caution to “lookout” was not sufficient; and the failure to take some other step, which he should have done under the rules provided, according to'the proof ; or else the failure of the company to make reasonable provision for the safety of these men, was negligence which contributed directly to the death of appellee. The verdict of the jury in my judgment was right, and the complaint should be treated as amended to conform to the proof. In the case of Triplett v. Railway Co. 54 Ark. 289, the complaint was as follows : ‘ ‘ That the defendant so carelessly and negligently managed and operated its train and cars that they passed over the body of the deceased, and thereby without the fault of the deceased he was killed.” A comparison of this with the complaint as copied above in this case will show that they are very similar in phraseology, and in legal purport the same.
In the Triplett case, Mr. Justice Fletcher, speaking for the court on a motion for rehearing, said : “At the trial, evidence was introduced without objection to show, on behalf of the plaintiff, that the railway company had failed to afford a proper and safe place for the deceased to work, and had not exercised proper care in affording him protection. * * The company introduced evidence upon the same issue. In fact, the burden of the evidence in the case was upon this issue. * * * The facts thus developed were undisputed, and the court g'ave instructions on both sides as to the law bearing upon the same.” And, citing the case of St. L., I. M. & S. R. Co. v. Harper, 44 Ark. 527, concluded the opinion in the language of the court in that case : “After verdict for the plaintiff the complaint may be considered as amended to conform to this proof.” I think the facts of this record call for the application of the same rule of law. Hanks v. Harris, 29 Ark. 323 ; Healy v. Conner, 40 Ark. 352.
It is obvious that the court has considered the instructions of the trial judge in the light of the complaint before verdict, and finding such of them as it has passed upon erroneous remands the cause with leave to amend the complaint.
I think, viewing the whole charge with reference to the complaint as already amended as above suggested, which the verdict upon the issues raised has already accomplished, there is no reversible error.