Arkansas Central Railroad Company v. Goad

• Decision Date: 18 November 1918
• Docket Number: 257
• Citation: 206 S.W. 901,136 Ark. 467
• Parties: ARKANSAS CENTRAL RAILROAD COMPANY v. GOAD
• Court: Arkansas Supreme Court

206 S.W. 901

136 Ark. 467

ARKANSAS CENTRAL RAILROAD COMPANY v. GOAD

No. 257

Supreme Court of Arkansas

November 18, 1918

Appeal from Logan Circuit Court, Northern District; James Cochran Judge; affirmed.

Judgment affirmed.

Thos B. Pryor, for appellant.

1. The court erred in refusing to give the peremptory instruction requested by defendant. No negligence was proven. It was a simple tool, and no duty of inspection rested on the company. Any defect was open and obvious, and appellee assumed any risk of injury. 83 N.E. 353; 88 Ark. 36; 108 Id 383; 4 Thompson on Negl. (2 ed.), § 4708; 1 Labatt on Master & Servant, 331, § 154; 82 S.W. 1026; 130 Ark. 486; 141 Ky. 40; 127 P. 474.

2. Plaintiff assumed the risk as this case was tried under the Federal Employment Act. 233 U.S. 492; 3 Elliott on Railroads (2 ed.), § 1278; 94 Wis. 596; 35 Ark. 616.

3. There is error in the instructions given and refused. They are abstract, and there was no proof of negligence. 108 Ark. 383.

4. The court erred in permitting counsel Evans to impeach the testimony of Doctor Benefield and Doctor Southard in his closing argument. 125 Ark. 319.

Evans & Son, R. J. White and Sid H. White, for appellee.

1. The tool was not a common or simple tool. But the "simple tool" has never been recognized in this State. 130 Ark. 486; 107 Id. 512.

2. Appellee did not assume the risk. Negligence and failure to inspect the tool was shown. 107 Ark. 512. A servant is not bound to search for dangers. He has a right to rely on the judgment and discretion of the master. 77 Ark. 367; 89 Id. 424; 48 Id. 333.

3. There is no error in the instructions.

4. Judge Evans' remarks were justified and legitimate argument. 125 Ark. 319. But any prejudice was fully eliminated by the admonition of the court.

5. The instructions state the law. 58 U.S. (Lawy. Ed.), 521-4; 8 Thompson on Negl., § 3986; 88 N.E. 1124; 40 L.R.A. (N. S.), 832.

6. Review cases cited for appellant and contend they do not apply here. 107 Ark. 512-515; 108 Id. 377; 130 Id. 486. Appellant failed in its duty as the jury found.

HUMPHREYS, J. SMITH, J., dissents.

OPINION

HUMPHREYS, J.

Appellee recovered a judgment for the sum of $ 1,250 to compensate the damages resulting from an injury sustained while working as a section hand for the appellant company (hereinafter referred to as the company). He predicates his right to recover damages upon the alleged negligence of the company in furnishing him a defective tool with which to perform his duties. This tool was a lining bar, and appellee described it and the manner of his injury as follows: The bar was about five or six feet long, with a small tip at the lower end, and at the bottom end there is a knuck on the under side. A new bar has a long tip on top and turns up a little at the end. In its use, the bar would be placed under the end of a tie and the knuck rested on a fulcrum. The ties were lifted up or nipped, so that the coemployees could spike the rails to the ties. That the bar furnished him was worn on the end which was properly inserted under the tie, and the knuck was worn until it was round, when it should have been flat. That, after putting the bar in position, he put all his weight on it and lifted up the tie supporting the rail, and the bar slipped, and he fell heavily a distance of three or four feet to the ground against a track jack, and sustained an injury to his side which developed into traumatic pneumonia. That the point of a new bar is sharp and square, whereas the point of the bar furnished him was blunt, and its knuck, instead of being flat, was round, and this worn and defective condition caused the bar to slip, whereas, but for the defect set out, it would not have slipped.

By way of defense to the suit, it was answered that the tool furnished was one of a nature so simple and so durable that no duty of inspection existed, and that any defect which might have developed through use would have been so open and obvious that appellee must be held to have assumed any risk of injury arising out of its use.

A large number of instructions were given, and several were refused, but no objection is pointed out to the instructions given except that they were abstract, the basis of this objection being that the court should have held as a matter of law that no liability was shown. The instructions given appear to fully and fairly cover the law of the case, and we have concluded that no error was committed in refusing any of the instructions asked by the company, for the reason that the instructions given correctly declare the law applicable to all the issues raised by the testimony. The ground for reversal chiefly insisted upon is that no instruction would have been proper except a direction to return a verdict in favor of the company, and, while we regard this as a close question, we think the case should have gone to the jury and that the testimony is legally sufficient to sustain the verdict.

Appellee had had several years' experience as a section hand, but had worked as a section hand for the company only a few days and had only assisted in nipping four or six ties, which had required about thirty minutes, and during this time had not observed the worn condition of the bar. Only two bars were furnished for the use of the entire crew, and, after his injury appellee observed the defective and dangerous condition of the bar he had been using, and compared it with the other bar, and found that the other was not so badly worn. It was also shown that these bars had been in continuous use for a period of more than twenty years, during all of which time they had never been inspected or repaired. It was testified to, however, on behalf of the company that the bars were practically indestructible and could be safely used for the purposes for which they were intended by the exercise of ordinary care on the part of the workman, and that no one had ever been hurt before or since in the use of the bar that injured appellee or of similar bars. It is also very earnestly insisted that appellee's attack of pneumonia was not attributable to his injury, and two doctors so testified. It was shown that, after his injury, appellee continued at work during the remainder of the day and for a period of an hour and a half, and two doctors expressed the opinion that a man who had sustained a fall of sufficient force to produce pneumonia would be unable to continue his work. Appellee testified that, although he did work for the remainder of the afternoon, the pain increased in severity until finally, at quitting time, he felt as...