J. C. York, a brakeman in the employ of the appellant railroad company, while in the performance of his duties on a freight train running from Memphis, Tennessee, to Wynne, Arkansas, and beyond, met his death while switching cars at Wynne. This is an action by the -administrator to recover damages therefor; and at the conclusion of the trial the court directed a verdict for the defendant railroad company, and the administrator has appealed. These facts were developed:
York was sent to uncouple some cars which were making a flying switch, and the lever which worked the coupling from the outside-of the cars was out of order and did not work, and he went between the cars to lift the pin with his hand, or else to reach across and get the lever on the other side (the witnesses differ as to which method he adopted). In some way he got the cars uncoupled while in between them, and while recovering his position outside of the cars he got his foot caught in an unblocked frog and was run over, death resulting from his injuries. The record is in some confusion as to exactly where he was when he was caught, but a jury could have found these facts: When the cars parted, York walked along holding to the' car, going along with it (the car was moving slowly) ; and while so doing his foot was caught in the frog. He was walking backwards, with the motion of the car, when his' foot caught in the frog, which was outside of the track that the car was moving upon. He had evidently got outside of that track; and, while- it is not as clear as it should be, yet it may fairly be found that he was not clear of the cars, which extended beyond the tracks, -when his foot was caught. It is inferred from the .testimony that this frog was between the track upon which the car was moving and a track intersecting it, outside of the track upon which the car was moving. This would put York still between the cars, although outside of the track upon which the cars were moving, when his foot got caught. This view of the evidence harmonizes the apparently inconsistent statements of the eye witnesses nearest to York when he was run over. These facts presented a question for the jury. They show a violation of .the act of Congress of March 2, 1893, secs. 2 and 8 of which are as follows:
“Section 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going in between the* ends of the cars.”
“Section 8. That any employee of any such common carrier who may be injured by any locomotive, car or train in use contrary to the provisions of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although • continuing in the employment of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.”
The failure to have a coupling which met the requirements of this act necessitated York going between the cars to uncouple them if he obeyed orders to do so. Had the act of Congress been complied with, he would not have been required to have placed himself in this dangerous position in order to uncouple the cars. The act expressly provides that performing the work, notwithstanding the default of the company, should not be taken as an assumption of the risk. That -being true, the question narrows to one of contributory negligence in going between the cars to uncouple them. The court cannot say as a matter of law that -he was guilty of contributory negligence in doing so. Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11; Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 205 U. S. 1; Kansas City, Memphis & Birmingham Rd. Co. v. Flippo, 138 Ala. 487.
The cause of action can not be predicated upon the use of unblocked frogs. That matter has been thoroughly considered by this court in Davis v. Railway, 53 Ark. 117, and Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11.
The proximate cause appears to have been the failure of the company to furnish a. coupler which would enable the brakeman to uncouple the cars without going between them. When he, in the performance of his duties, went between them, in order to uncouple them, and his death resulted from his failure to extricate himself from that dangerous position, it matters not whether an unblocked frog, a hole or rock, or some other obstruction, caused him to fall. The default was in the company failing to equip itself with appliances that would enable him to uncouple the cars without going between them. The court erred in directing a verdict for the defendant.-
Opinion delivered May 23, 1908.Reversed and remanded.