Allegheny Improvement Co. v. Weir

• Decision Date: 21 November 1910
• Parties: ALLEGHENY IMPROVEMENT COMPANY v. WEIR
• Court: Arkansas Supreme Court

132 S.W. 462

96 Ark. 500

ALLEGHENY IMPROVEMENT COMPANY v. WEIR

Supreme Court of Arkansas

November 21, 1910

Appeal from Carroll Circuit Court, Eastern District; J. S. Maples Judge; reversed.

Judgment reversed and cause remanded for new trial.

W. B Smith, and J. Merrick Moore, for appellant.

1. Negligence is but an inference or conclusion drawn from facts alleged and proved, and a complaint should contain, not conclusions or inferences of law, but a statement, concise in form, from which they are drawn. 41 Mich. 435; 66 N.W. 842 10 Minn. 151; 26 P. 560; 41 A. (N. J.) 710; 43 A. (R. I.) 536; 14 Enc. Pl. & Pr. 335; Id. 336. A motion to make more definite and certain would have been the proper method of reaching defects in the complaint in the case at bar. 40 Ark. 277; 53 Ark. 453; 66 Ark. 280; 70 Ark. 161; 73 Ark. 8; 77 Ark. 607; 75 Ark. 369.

2. The evidence does not sustain the verdict. 71 Ark. 518.

3. By his own evidence appellee shows that he was aware of the risks ordinarily incident to the use of gasoline as used at the time of the accident, and the burden of proof was upon him to show that the explosion was the result of some risk or danger which was not or should not have been known by him; otherwise he assumed the risk. 68 Ark. 316; 77 Ark. 367; 41 Ark. 382; 63 Ark. 181; 70 Ark. 143; 74 Ark. 22; 77 Ark. 22.

Festus O. Butt, for appellee.

1. If it be conceded that there was a defect in the complaint, that defect was cured by the verdict. 31 Cyc. 776 and cases cited; 109 Mo. 64, 18 S.W. 1149; 28 N. E. (Mass.) 352; 130 Mo. 657; 50 N.W. 989.

2. The evidence supports the verdict, if it supports a finding that the master furnished the servant with a dangerous appliance for his work, of the dangerous character of which in the manner used he was ignorant, and of which it failed to give him warning; and, such being the case, the risk was not assumed. 109 Mo. 64; 89 Ark. 424.

3. The doctrine res ipsa loquitur applies where the injury is of such nature that it could not well have happened without the master being negligent, or where it is caused by something connected with the equipment or operation of the road over which the company has entire control. 75 Ark. 479; 207 Mo. 480. Under such circumstances the burden is upon the defendant, such an accident and due care on the part of the plaintiff being shown, to explain the occurrence of the accident, and show affirmatively its freedom from fault. 168 Pa. 497; 184 Pa. 519; 80 Md. 146; 164 Mass. 42. The mere fact that the accident was unusual or that a similar one may never have occurred before does not repel the charge of negligence. 144 Mass. 404; 39 N.Y. 227; 95 N.Y. 562; 38 U.S. 181; 101 U.S. 453.

OPINION

MCCULLOCH, C. J.

In the year 1908 defendant, Allegheny Improvement Company, a foreign corporation, was doing construction work for the Missouri & North Arkansas Railroad Company in the northern part of this State, and the railroad company furnished to said defendant a train-crew of men to operate a steam ditcher in the prosecution of said construction work. The men composing the train-crew became, according to the contract, servants of defendant during the progress of this work, and were under the orders of Mr. Nicholas, defendant's general foreman. Plaintiff was a member of the crew, being a brakeman.

While they were at work at Arlberg, Ark., members of the train-crew slept in a caboose which, it appears, was infested with bedbugs. Early on the morning of Sunday, November 8, the men wanted to clean the caboose and rid it of the vermin. They (plaintiff, another brakeman named Liming and the conductor, Mr. Queen) procured two pails of gasoline from a pump house nearby, and proceeded to use it in the caboose by throwing it with cups on the walls and bunks. While doing this, an explosion occurred, and the plaintiff was severely burned, and sustained serious injuries. They had used in this way one of the pails of gasoline and about one-third of the other pail when the explosion occurred. The door and windows of the caboose were open at the time. Plaintiff was standing in the door at the time, and his companions, Queen and Liming, were just outside, having become sick from the gas arising from the oil which they had all three been engaged in throwing about the car. There was no fire in or about the car, and there is nothing in the testimony to account for the explosion. No one else was near, and these men all testify that they were not smoking and did nothing to produce the explosion except to throw the gasoline about the car.

The testimony is conflicting as to the responsibilty for using gasoline. Plaintiff stated that Nicholas, the foreman, instructed them to get some gasoline and use it, but did not tell them how to use it. The other testified that when they were about to clean the caboose for their own convenience and comfort Nicholas merely suggested that it would be a good thing to use for the purpose of exterminating the bugs, and gave them permission to get some from the pump house.

Plaintiff instituted this action against defendant to recover compensation for his injuries, alleging in general terms that the explosion was caused by the negligence of his fellow-servants. The allegations of the complaint with respect to the alleged negligence are as follows: "That on the 8th day of November, 1908, this plaintiff at the said town of Arlberg was ordered by his superior employee in charge of the train aforesaid to clean out and drench the caboose aforesaid, and the bedding and appliances therein with gasoline. That said superior employee, in charge of said train, brought and furnished plaintiff with the gasoline aforesaid, at the caboose aforesaid, for the purpose aforesaid, and, upon such order being received, it was the duty of plaintiff to comply therewith, which plaintiff then and there proceeded to do; that while so engaged, and while in the exercise of all reasonable care and prudence upon his part, and without any fault on the part of the plaintiff, the gasoline became ignited and exploded, through the negligence of the fellow-employees of this plaintiff in the employ of the defendants. That it was the duty of the defendants, in consideration of the services of plaintiff, to provide for him at all times a safe place and safe equipment to work, and that plaintiff believed, upon entering said employment, that such safe place and equipments would be provided, and believed, upon entering said employment, that it was safe for him to carry out the orders aforesaid in the use of said gasoline as aforesaid, and that plaintiff had no knowledge or notice that such use of gasoline was extra...