Arkansas Land & Lumber Company v. Cook

• Decision Date: 19 February 1923
• Docket Number: 173
• Citation: 247 S.W. 1071,157 Ark. 245
• Parties: ARKANSAS LAND & LUMBER COMPANY v. COOK
• Court: Arkansas Supreme Court

247 S.W. 1071

157 Ark. 245

ARKANSAS LAND & LUMBER COMPANY v. COOK

No. 173

Supreme Court of Arkansas

February 19, 1923

Appeal from Calhoun Circuit Court; C. W. Smith, Judge; affirmed.

STATEMENT OF FACTS.

Granville Cook sued the Arkansas Land & Lumber Company to recover damages for physical injuries received by him by being negligently thrown from the front end of a motor-car on which he was riding while in the employment of said company. The defendant denied that the plaintiff was injured on account of its negligence.

On the 12th day of January, 1921, Granville Cook was injured by being thrown from a motor-car of the Arkansas Land & Lumber Company while returning from work. The defendant owns and operates a railroad from its mill to a point something like twenty-five or thirty miles in the country. The company used a motorcar with a trailer attached to it to carry its section crew and bridge crew to and from their work. Each crew worked under the direction of a foreman, and both together had fourteen men. The section crew rode on the motor-car, and the bridge crew on the trailer attached to it. The section foreman usually drove the motor-car with the trailer attached, but on the day in question the car was driven by the assistant section foreman. It had been sleeting on that day, and this made the track slick. The entire crew of fourteen men started to the mill on the motor-car and trailer. Granville Cook was riding on the right-hand corner of the motor-car, which was his usual and customary place to ride. As the car approached a sharp curve, the driver cut off the gas in order to check the speed of the car. Then he turned the gas on again, and the car ran off of the track on the inside of the curve. Its speed was about twenty-five miles an hour when it left the rails, and the car then ran along on the ties until it fell over. The plaintiff was pinned under the car and was severely injured. There was a low joint where the car ran off the rails. The surface under the rails and ties had become soft, and the heavy loads drawn over the rails had caused them to sink down into the earth. The ties had become rotten to an extent, and this caused the spikes which fastened the rails to the ties to become loose and let the rails spread. The railroad was used for hauling the logs of the defendant. The customary speed at which the motor-car was run in carrying the crew to and from work was twelve miles an hour. Some of the crew testified that there was no slacking of the speed of the car when the car ran into the curve, and that it was going at the rate of twenty-five miles an hour.

According to the evidence for the defendant, the track was in good condition and the ties were sound. There were no low joints in the rails, and the rails had not spread. The motor-car had been inspected four or five days before the accident, and was in good condition. It had been in use about six months. The front axle of the car was not bent, as testified to by some of the plaintiff's witnesses.

The assistant section foreman, who was driving the car at the time of the accident, was also a witness for the defendant. According to his testimony, the track was covered with sleet and was very slick. When he got to the point of the curve he threw the gas off, and when he thought he was safe he threw the gas back on to hold his speed. When he put the gas on the car again, it jumped the track. He testified that the sleet was hitting him in the face when he turned the gas on. He said that he turned the gas on in the ordinary and usual way but because of the sleet hitting him in the face he might have put on too much gas.

Other evidence will be stated or referred to in the opinion.

The jury returned a verdict in favor of the plaintiff for $ 1,000, and the defendant has appealed.

Judgment affirmed.

Henry Berger and Mehaffy, Donhan & Mehaffy, for appellant.

D D. Glover and D. M. Halbert, for appellee.

OPINION

HART, J., (after stating the facts).

The first assignment of error is that the judgment should be reversed because the court gave instruction No. 1, over the objection of the defendant. The instruction is as follows:

"The court instructs the jury that, if you find from a preponderance of the evidence in this case that the plaintiff was in the employ of the defendant company and was working for it under the orders and directions of its foreman, and you find from the evidence that he was in the exercise of ordinary care for his own protection, and you find from the evidence that he had not assumed the risk, and you find from the evidence that he was injured on account of the negligence of the defendant company, its agents, servants or employees, as alleged in his complaint, it will be your duty and you are instructed to find for the plaintiff in this case. "

Counsel specifically objected to the instruction because there was no evidence to the effect that the plaintiff was working under the orders and directions of his foreman, or that he was injured by reason of obeying any order or direction of his foreman.

We do not think this objection is tenable. The evidence shows that the plaintiff was a member of a section crew which worked under a foreman. He necessarily gave them orders about doing their work, and the instruction simply means that, at the time the plaintiff was injured, he was working under his foreman. It was true he was coming home from his work on a motor-car, but this was his usual and customary way of going to and from work. He had a regular place on the motor-car in which to sit, and he was occupying this place at the time the car ran off of the track. He was as much under the authority of the foreman at this time as he was when he was actually at work on the tracks. Arkadelphia Lumber Co. v. Smith, 78 Ark. 505, 95 S.W. 800; Gilkey v. La. & Ark. Ry. Co., 103 Ark. 231, 146 S.W. 497. The instruction did not mean to submit to the jury that the plaintiff was injured while doing a particular act at the command of his foreman. This interpretation is negatived by all the testimony in the case. There is no dispute whatever about how the accident occurred. The only dispute is about the defective condition of the track and the negligence of the driver of the motor-car. We do not think that the jury could have been in anywise misled by this instruction.

The court gave, at the request of the defendant, instructions covering every phase of the case presented by the evidence.

Again, it is insisted that the instruction assumes that the defendant was negligent. We do not think so. The instruction plainly predicates the right of the plaintiff to recover upon a finding by the jury of negligence as alleged in the complaint.

It is next insisted that the court erred in giving instruction No. 7, which reads as follows:

"You are instructed that it was the duty of the defendant company to exercise ordinary care to see that its motor-car and its track and roadbed were kept in a reasonably safe condition, and you are further instructed that this duty that rested on the defendant company required it to make reasonable inspection to see that they were kept in a reasonably safe condition."

It is first contended that there is no evidence to the effect that the defendant failed to make an inspection, and that the plaintiff knew as much about the condition of the track and roadbed as any one. The evidence for the plaintiff to the effect that the ties were rotten and that the rails had spread because the spikes had come out of them was evidence tending to show that the defendant had not inspected its tracks. Then, too, there was evidence of low joints in the rails which was caused by heavy loads being hauled over the rails and pressing them down into the ground, without a proper surfacing of the tracks. This evidence was sufficient to constitute negligence on the part of the defendant; for it was its duty to exercise ordinary care in furnishing the...