Arkadelphia Lumber Co. v. Smith

• Decision Date: 23 April 1906
• Citation: 95 S.W. 800,78 Ark. 505
• Parties: ARKADELPHIA LUMBER COMPANY v. SMITH
• Court: Arkansas Supreme Court

95 S.W. 800

78 Ark. 505

ARKADELPHIA LUMBER COMPANY v. SMITH

Supreme Court of Arkansas

April 23, 1906

Appeal from Clark Circuit Court; Joel D. Conway, Judge; affirmed.

Judgment affirmed.

J. H Crawford, for appellant.

1. This case is distinguishable from 53 Ark. 347 and 70 Ark. 290 relied on by plaintiff, in that in each of those cases the plaintiff was injured in the course of his duties, while at the work he was employed to do, at a time when he was upon tracks over which the railway company operated trains under contract with the owner, while in this case the employees of one company used at their own request a handcar upon tracks of a railway company, a stranger, for their own convenience. Plaintiff is not entitled to recover. 64 N.E. 587.

2. If any duty devolved upon defendant with reference to the tracks, there is no proof that defendant knew, or by the exercise of ordinary care ought to have known, of the defect. 46 Ark. 555; 41 Ark. 579; 54 Ark. 395; 67 Ark. 303; 17 L. R A. 450.

3. The same degree of care and security is not required in the laying of log roads as in roads of common carriers, nor are they required to be operated with the same degree of prudence. The care required depends upon the character and nature of the work to be done. 29 So. 874; 46 Wis. 497; 18 N.W. 584. If the track is such as to be used without danger by the exercise of ordinary care, the master has discharged his duty, and is not liable for accidents. 37 Am. Rep. 686; 17 L. R. A. 452. See also 35 Ark. 615.

4. Appellee, being familiar with the track and the kind of rails used in it, assumed the risk of injury. 4 Thomp. Neg. § 4643; 48 Ark. 333; 40 Mich. 247.

5. Instructions should not be based upon unproved hypotheses. 41 Ark. 392. It is error, in instructions to the jury, to assume as true the existence of facts in issue. 24 Ark. 540; 33 Ark. 375; 45 Ark. 256. If an injury is caused by a defect common to railroads, and could not have been avoided by reasonable care, the defendant is not liable. 48 Ark. 475. Defendant's first instruction should have been given. 7 S.E. 283.

Smead & Powell and McMillan & McMillan, for appellee.

1. It is in evidence, uncontradicted, that appellant furnished the handcar and the track. It was the custom of appellant to furnish handcars to its employees, and it was understood, when appellee was employed, that he was to be furnished transportation to and from his work. This case is controlled by 53 Ark. 347, and 70 Ark. 295. Whether the plaintiff was in the employ of the appellant at the time of the accident was a question of fact for the jury. 17 Wall. 509. Appellee, under the facts, was in the employ of the appellant at the time the injury occurred. 87 Am. Dec. 635; 10 Cush. 228; 14 Gray, 446; 23 Pa.St. 384; 5 Am. St. Rep. 178.

2. The proof shows that the track could have been laid and maintained in a reasonably safe condition, and appellant owed this duty to the appellee. It was for the jury to say from the evidence whether appellant knew of the defect, or in the exercise of ordinary care and diligence ought to have known of it. 46 Ark. 568. The evidence being legally sufficient to sustain the verdict, it will be upheld. 51 Ark. 467; 23 Ark. 131. A new trial will not be awarded unless there is a total want of evidence to sustain the verdict. Crawford's Digest, 146. See also 89 S.W. (Ark.), 468; 57 Ark. 461; 66 Ark. 363; 88 S.W. (Ark.), 824.

3. It is not as to the general condition of the track, but where the accident occurred, that plaintiff complains, and says the track was defective. The proof is conclusive that there was a defective rail, low joint and swinging joint. The appellant should have known of its existence, and of the increased danger to appellee resulting from it. 57 Ark. 382. If appellee was injured by reason of appellant's negligence in not maintaining a reasonably safe spur track, he is entitled to recover, unless he was guilty of contributory negligence which proximately caused the injury. 48 Ark. 345; 87 Am. St. Rep. 559 and note; 92 Am. Dec. 206 and note; 152 U.S. 689; 57 Ark. 377.

4. Appellee was not required to inspect the track before using it. He could rely upon the master to furnish a reasonably safe track. The fact that he knew that the track was laid on the ground, and that worn rails were used, would not prevent his recovering. Appellant ought not to have placed this rail in the track, because there was "an apparent cause of danger in its continued use." 35 Ark. 615; 18 Am. St. Rep. 729; 92 Mo. 440; 85 Am. Dec. 720; 57 Ark. 160; Ib. 383; 18 S.W. 977; 60 Ark. 438; 87 Mo. 545.

5. If the instructions given at appellee's request are in the abstract right, as admitted by appellant, there is no reversible error, unless appellant had asked and been refused more special instructions. 56 Ark. 602. Instructions are to be taken as a whole and construed together. 48 Ark. 407.

OPINION

BATTLE, J.

On the 15th day of October, 1900, Oscar Smith was seriously injured while in the service of the Arkadelphia Lumber Company. He brought this action against the lumber company to recover damages sustained by reason of the injuries.

The lumber company is a corporation, and owned and operated a saw and planing mill at Daleville, in Clark County, in this State, on or near the railroad of the Ultima Thule, Arkadelphia & Mississippi Railway Company, and was engaged in the manufacture of lumber. A lateral railroad was constructed from the main line of the railway company to and into the timber lands of the lumber company, and was used in transporting logs from the lands of the lumber company to its mill to be manufactured into lumber. Its track was temporarily laid, and in such manner as to be removed to the timber of the lumber company on different tracts of land with the least expense. Plaintiff and many others were employed by the defendant, and were engaged in hauling logs to various places on the lateral railroad by means of teams and wagons.

The evidence in this case tended to prove that the defendant owned and furnished railroad handcars to its teamsters at the close of the day to convey them from their work to their respective homes over the railroad, and that it was understood when a teamster was employed that he would be furnished with a handcar for such a purpose, and it was so understood when plaintiff was employed; and that when the lateral road was constructed it furnished such cars to its teamsters for transportation over it to their homes after each day's work was done.

On the 15th day of October, 1900, the defendant furnished plaintiff and four other teamsters with a handcar to carry them to their homes over the lateral road. They boarded the same, and were propelling it over the lateral road at the rate of six or eight miles an hour, when it ran off the track, and violently threw the plaintiff to the ground, and seriously injured him. There was evidence tending to prove that at the place where the accident occurred the track of the lateral road had been recently laid, and an old rail, worse than the other rails on the track, with the ball or T thereof broken off for eight or ten inches, formed a part of the track at the time it was laid, and that there was a low joint in this part of the track; all of which was a defect in the construction of the track. There was also evidence tending to prove that this defect was unknown to the plaintiff at the time of the accident, and that he was making his third trip over the same when he was injured.

D. B. Hart testified that he was a tracklayer on the lateral road at the time plaintiff was injured, and as such was in the employment of the defendant.

W. E. Hubbard testified that he was an engineer operating an engine on the lateral road, and was in the employment of the defendant and of the Ultima Thule, Arkadelphia & Mississippi Railway Company.

The court instructed the jury at the request of plaintiff, over the objections of the defendant, in part, as follows:

"1. If you find from the testimony that the handcar and roadbed were furnished plaintiff by defendant or by the defendant's foreman, Will Richardson, then the source of its title to said roadbed, whether owned by the defendant leased, borrowed or otherwise placed in his possession for use, is wholly immaterial. As between plaintiff and defendant, the roadbed is the property of the defendant.

"2. It was the duty of the defendant to exercise ordinary care and diligence to provide a reasonably safe track at this place for the use of the plaintiff; and if it failed to perform that duty, and plaintiff was injured by reason of such failure, then the plaintiff may recover, unless he was guilty of negligence which contributed to his injury, or knew or ought to have known of the defects of the track before attempting to use it.

"3. If, under all the circumstances which surrounded the plaintiff at the time of the accident, he ought to have observed and comprehended the...