Archer-Foster Construction Co. v. Vaughn

• Decision Date: 07 May 1906
• Citation: 94 S.W. 717,79 Ark. 20
• Parties: ARCHER-FOSTER CONSTRUCTION COMPANY v. VAUGHN
• Court: Arkansas Supreme Court

94 S.W. 717

79 Ark. 20

ARCHER-FOSTER CONSTRUCTION COMPANY v. VAUGHN

Supreme Court of Arkansas

May 7, 1906

Appeal from Sebastian Circuit Court, Fort Smith District; Styles T Rowe, Judge.

J. H Vaughn, as next friend to Joseph J. Fitzpatrick, sued the Archer-Foster Construction Company to recover damages for personal injuries alleged to have been received in its employment, and recovered judgment, from which defendant appealed. Affirmed.

Judgment reversed and cause remanded.

Ira D Oglesby, for appellant.

If any negligence is shown, it was that of a fellow-servant. If a foreman or one who in some respects is a vice-principal performs an act of labor in common with the labor of the plaintiff, he is a fellow-servant. 58 Ark. 217.

Read & McDonough, for appellee.

A foreman having power to employ, control and discharge laborers in his department is a vice-principal as regards the duty to warn such laborers of latent risks in their employment. 58 Ark. 168. It is in proof that appellee was working in a drill gang, doing ordinary drilling work in which there was no danger; that he was under the control of Lynch, and was directed by him to place the drill in a hole containing the dynamite, which latter fact was unknown to appellee, and of which he had no notice or warning. Appellant and Lynch were not fellow-servants. 65 N.W. 914; 73 N.W. 186. Lynch stood in the place of the master, and the latter is liable for his negligence in assigning the servant to work in a dangerous place. 12 Am. & Eng. Enc. Law (2 Ed.), 957; Ib. 948; 11 Ind.App. 211; 104 Mo. 114. Appellant owed the absolute duty to appellee to furnish him a safe place in which to work, to warn him of the dangers incident to his duties, especially of latent risks or dangers, unknown to appellee, and known to it, or which by the exercise of ordinary care it could have known. 98 Cal. 19; 146 Ill. 551; 130 Ind. 321; 103 Mich. 196; 41 Minn. 212; 142 N.Y. 416; 76 Tex. 611; 31 S.E. 614; 82 Wis. 307.

WOOD J. BATTLE, J., dissenting.

OPINION

WOOD, J.

Appellee alleges in his complaint, among other things, the following:

"That on the 18th day of February, 1904, while the said Joseph J. Fitzpatrick was in the lawful employ of the defendant as aforesaid, the defendant did negligently, carelessly and recklessly take the said Joseph J. Fitzpatrick from where he was working in a place of safety, and did negligently, carelessly and recklessly set him to work at a hole which was heavily loaded with dynamite and other strong explosives, and did negligently, carelessly and recklessly fail and neglect to warn or notify the said Joseph J. Fitzpatrick that said hole was loaded, as aforesaid, and did negligently, carelessly and recklessly fail and neglect to furnish and provide a safe, competent and proper man in charge of said dynamite and other strong explosives, and did negligently, carelessly and recklessly fail and neglect to furnish the said Joseph J. Fitzpatrick with a safe, sufficient and proper place in which to perform his duties, and did negligently, carelessly and recklessly fail and neglect to warn or notify the said Joseph J. Fitzpatrick of the dangers of working at said hole, and the dangers and perils incident to said work, by reason whereof, and by reason of the negligence, carelessness and recklessness of the defendant as hereinbefore alleged, and without any fault or want of care on the part of said Joseph J. Fitzpatrick, and without any warning or notice whatever that said hole was loaded as aforesaid, or that there was any danger whatever in working at said hole, the dynamite and other strong explosives in said hole exploded, and said Joseph J. Fitzpatrick was thrown a distance of fifteen or twenty feet into the air, and fell with great force and violence to the ground, and was severely and permanently injured, as hereinafter more particularly alleged.

"That all dangers and perils incident to the employment of the said Joseph J. Fitzpatrick at the time of the accident and injuries as hereinbefore alleged were at all times well known to the defendant, but that the said Joseph J. Fitzpatrick then and there did not know, and he could not by the exercise of ordinary care and prudence on his part know, of them, and he had not the means of knowing as to the same."

Appellant in its answer denied each allegation of the complaint, and in addition to these denials set up a plea of contributory negligence, assumed risk, and that the accident was caused by the negligence of appellee's fellow-servant.

Upon the issue as thus made the cause was submitted to the jury.

The appellant was a construction company, and at the time of the injury to appellee was engaged in the work of constructing a roadbed for a railroad. The work being done was excavation work, removal of earth and rock, and was carried on by different squads. Some were engaged in handling steam shovels, others in drilling holes for blasting, and others loading and firing the holes after they were drilled. Appellee was with the crew that was drilling the holes. His account of the injury is as follows: "That, when at work drilling holes about thirty feet ahead of Lynch, he was called by Lynch to bring a drill, and on getting to where Lynch was at work, Lynch told him to put the drill in one of the holes, which he did; and that then he and Lynch took bold of the drill, and about the time they had given two or three licks with the drill the explosion occurred; that he knew it was Lynch's business to load...