St. Louis, Iron Mountain & Southern Railway Co. v. Wirbel

• Decision Date: 20 May 1912
• Citation: 149 S.W. 92,104 Ark. 236
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WIRBEL
• Court: Arkansas Supreme Court

149 S.W. 92

104 Ark. 236

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WIRBEL

Supreme Court of Arkansas

May 20, 1912

Appeal from Desha Circuit Court; Antonio B. Grace, Judge; reversed.

STATEMENT BY THE COURT.

This suit was brought by Harry Wirbel, a minor, by his mother, as next friend, to recover damages for a personal injury alleged to have been received on account of the negligence of the defendant, by reason of the collapse of a coal hoisting machine, on its premises in its yards, at McGehee, Arkansas. The complaint alleged:

"That upon December 15, 1909, the said Harry Wirbel while in pursuance of his duty, and by and with the consent of the defendant, and while upon the property of the defendant at McGehee, Desha County, Arkansas, was seriously and permanently injured through no fault of his own, but by the wanton and wilful and gross carelessness of the defendant company. That the defendant kept and maintained at McGehee, on its property, a coal chute, which it had allowed to become in such bad condition that it was dangerous to operate the same, and that the said defendant knew of the condition thereof, and that it was unsafe to operate the same, and was liable to cause the very accident that occurred, that said defendant had been warned of the condition said machinery was in, and had taken no steps to repair the same, or replace it with new machinery or to place the same in condition to protect its employees and the public. That the condition of said chute was not known to the said Harry Wirbel.

"That while the said Harry Wirbel, who had just come to the doorway of the building in which the machinery operating the said chute was contained, and was standing there preparatory to making an inquiry of the engineer in charge, who, at the time, was busy, the machinery operating the said machinery burst and broke, and he was struck by a piece of the broken engine, his right leg was cut off several ribs were broken, and he was otherwise badly bruised and cut and injured, suffering great bodily pain and mental pain and anguish. And at the same time the engineer operating the plant was injured."

The complaint further alleged the necessity for the amputation of his leg, the loss of time and the pain and anguish occasioned by it, as well as the expense for medical attention, and prayed for damages in the sum of $ 20,000.

The answer denied each allegation of the complaint.

Henry Wirbel is a locomotive fireman, and, according to his statement, went to McGehee, with a view to securing employment, having heard that appellant company was in need of and employing firemen there. He was not acquainted with any one at McGehee, and, upon the morning after his arrival accosted a negro, whom he saw near the station, and asked directions to the master mechanic's office. He went to the office and inquired of the office man for the master mechanic, without disclosing his purpose for desiring to see him, and was told that the master mechanic was not in, but was somewhere in the yards, and that he could probably find him there. In his search for the master mechanic, he came near the coal chute, not knowing what it was, looked in the door a minute, spoke to the operator of the hoisting machine and was just on the point of asking for the master mechanic when the machinery broke and fell on him, cutting off his right foot near the ankle, and otherwise injuring him. His leg was afterwards amputated above the knee.

Paffe stated he was operating the coal chute engine the day it broke, but did not know Wirbel, and did not see him about the engine room that morning nor at all on the day of the injury before seeing him at the doctor's office on the stretcher, after the accident occurred; that the frame that held the drum on the sides of the engine was broken, and the weight of the bucket going up lifted the two parts of the frame, and also the drum off the engine; that he was present when it occurred, but did not know what happened; that when he came to, he was thirty-three feet down in the hole; that the engine was in bad shape, and had been since he went to work; that he had called the attention of the officials to the engine immediately after he started to work, and some men had been working on it, but didn't seem to do any good notified the master mechanic a day or two before the accident what was going to happen, and where he would land.

McCuen testified that he was an engineer by occupation, and before December 15 was the coal chute and fuel foreman at McGehee for defendant and operating the hoisting engine that carried the coal bucket under the chute. The condition of the machinery was very bad. The frame was cracked about two-thirds down on one side, on the left-hand engine for a distance of six or seven inches. Both frames were cracked on the other engine. It was a twin hoisting engine, and the spool or drum was in between the two engines. It sat right over the two engines attached to the frame by a boxing, and when the engine worked the frame would give so that you could see it. The engine was in a dangerous condition. He called on the foreman several times to have it fixed, but nothing effective was done to repair it, and he finally quit work because of its dangerous condition, but remained a week after giving notice for the arrival of his successor, Paffe.

The coal chute is a little south and east of the depot at McGehee, a distance of about 250 or 300 yards. Leaving the depot going to it, a man would have to cross the main line and, if he went straight, he would have to cross about three tracks; then by going a little further over on the coach track, on a straight line, to the roundhouse, and coming down by the roundhouse, he would only have to cross one track, but he would have to come down the track to the coal chute on which they bring the engines to be coaled. If he came around the other way, he would have about fifteen tracks to cross. Lots of people travel up and down track 13 in order to go to the negro settlement below the coal chute, and some people use that track as a passage way, although there is a wagon road on the other side of it.

There was testimony relative to the injury and the resultant damages.

The court instructed the jury, refusing to give the four instructions requested by the railroad company, and gave, on its own motion, over appellant's objection, instruction numbered 1, as follows:

"If you find from the evidence that, at the time of plaintiff's injury, he had gone to the place of injury, not as a mere idler or loafer, but bona fide, in search of the master mechanic, in order to obtain employment as a locomotive fireman, in the service of defendant company, and that while so engaged, and without any negligence or want of ordinary care upon his own part, he was injured by the bursting or breaking down of some part of the machinery used by defendant for the hoisting of coal at the chute; and if you further find that such bursting or breaking of said machinery was caused by its unsafe and. defective condition, and that such unsafe and defective condition was known to the officers of the defendant company, whose duty it was to have the same repaired, and had been so known for a sufficient length of time before the accident to give them reasonable opportunity to have said machinery pet in reasonably safe condition, then the plaintiff was not a trespasser on the grounds of the defendant, and is entitled to recover damages for the injuries sustained."

The jury returned a verdict for plaintiff, and from the judgment the railroad company appealed.

Judgment reversed and cause remanded.

James C. Knox, E. B. Kinsworthy and W. E. Hemingway, for appellant.

The view indicated by the court in its statements made during the taking of testimony and in its first instruction to the jury is erroneous in that it holds (1) that any person seeking employment has an invitation to go into the yards and private grounds of an industry to obtain such employment, and (2) that such invitation extends not only to the place where business is transacted, but also extends to the entire premises, including the places used for the private purposes of the owner. 57 Ark. 16, 18; 89 Ark. 122, 128; 77 Ark. 561; 90 Ark. 279, 285; 69 Ark. 489, 498; 2 Cooley on Torts, 1258, 1259, 1264; 21 N. E. (Mass.) 369; 31 N. E. (Mass.) 644; 120 F. 921, 924; 22 P. 256; 119 S.W. 871; 128 S.W. 376; 62 N.E. 968; 91 N.E. 886; 47 S.E. 975, 977; 50 S.E. 1003, 1004; 51 A. 505; Id. 708.

The instruction does not correctly state the rule for determining the defendant's liability, if the plaintiff was a licensee. It imposes the positive duty upon defendant to exercise care for the safety of persons on its premises as bare licensees, whereas the law imposes no such duty, but only holds the owner in such case liable for wilful or wanton injury after the presence of the licensee on the premises is discovered. It also makes the defendant liable for an injury that could not reasonably have been anticipated. 90 Ark. 278, 285; 55 Ark. 435; 69 Ark. 489, 498; 57 Ark. 16, 18; 91 N.E. 886; 89 Ark. 122, 128; 77 Ark. 561; 22 P. 256; 21 N.E. 644; 62 N.E. 968.

The instruction is further erroneous in that the purpose of plaintiff to get employment would not constitute an invitation--that must proceed from the defendant.

If there was an implied invitation to go to the office of the master mechanic for employment, it would not extend to the yards, etc., used by the defendant in doing its work. 48 Ark. 106, 126.

C. P. Harnwell, for appellee.

The instruction is right. The evidence shows not only that the appellant was grossly negligent in permitting its coal chute to remain in an extremely dangerous condition, menacing the life of any one near it, but also...