Arkansas Land & Lumber Company v. Fitzhugh

• Decision Date: 29 March 1920
• Docket Number: 287
• Citation: 219 S.W. 1022,143 Ark. 122
• Parties: ARKANSAS LAND & LUMBER COMPANY v. FITZHUGH
• Court: Arkansas Supreme Court

219 S.W. 1022

143 Ark. 122

ARKANSAS LAND & LUMBER COMPANY v. FITZHUGH

No. 287

Supreme Court of Arkansas

March 29, 1920

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

Judgment affirmed.

T. D Wynne, for appellant.

1. Plaintiff assumed the risk and was also guilty of contributory negligence. The risk was patent and visible. 88 Ark. 548; Ib. 243; 101 Id. 197; 104 Id 489; 118 Id. 304; 134 Id. 491; 56 Id. 232; 98 Id. 202; 3 Labatt on Master & Servant (2 Ed.), par. 1174, 1179-1183.

2. The court erred in its instruction to the jury. They ignore the defense of assumption of risk, and the contention of defendant that the injury was cause from a defect in the pilot which was plainly visible and patent and could have been seen and known by casual observation. 134 Ark. 491; 118 Id. 304; 101 Id. 201; 60 Id. 438. The instructions given were also contradictory and conflicting and hence prejudicial.

3. The verdict is excessive. 72 A. 426; 116 N.Y.S. 1150; 174 F. 477; 181 Id. 276; 131 S.W. 714.

Pace & Davis, for appellee.

1. There is no error in the instructions; the doctrine of assumed risk was fully and clearly declared and the instructions are harmonious.

2. The verdict is not excessive. 107 Ark. 512; 105 Id. 533; 89 Id. 87; 87 Id. 641; 81 Id. 187; 124 Id. 298; 89 Id. 522; 88 Id 225.

OPINION

MCCULLOCH, C. J.

Apellant is a foreign corporation and operates a lumber mill at Malvern, Arkansas, and in connection therewith also operates a short line railroad for the purpose of hauling logs from the woods to the mill. On December 19, 1918, and for a time prior thereto, appellee was employed by appellant as brakeman on the logging train. Three men were engaged in operating the train, the engineer, the fireman and the brakeman. Among the other duties of appellee, one was to ride out on the pilot of the engine and throw the switch so as to cut the engine loose and let the cars run around the "Y" track. On that day as the train left Malvern appellant was, as usual, sitting on the head-block of the pilot, and as the switch was approached he stepped down on the step and was standing there preparatory to stepping off to throw the switch, when the lower end or nose of the pilot was caught by the guard rail at the switch and the pilot, with appellant standing on it, was thrown back under the engine and appellee's foot was cut off.

This is an action to recover damages on the allegation that appellant was guilty of negligence in permitting the pilot to get out of repair in that it hung so low that it could not pass over the guard rail. There was a plea of contributory negligence and of assumption of risk, as well as a denial of the charge of negligence. Appellee recovered $ 10,000 by the verdict of the jury, and an appeal has been prosecuted to this court.

The testimony was abundantly sufficient to sustain the verdict, though there were sharp conflicts in it. The facts established by the testimony, viewing it in the light most favorable to appellee, are that two days before appellee's injury there was a collision with a coal car, and the engine was disabled. The knuckle on the coupler was broken, and the pilot was loosened so that it swung low and was in danger of striking the rails. The master mechanic was notified, and under his direction another trip was made that day with the engine without accident, but it was taken to the repair shop for repairs. Another engine, a smaller one, was furnished to the men for operation the next day, and on the succeeding day, which was the day of the injury, the men went to their place of work with the expectation of using the smaller engine, but the master mechanic pronounced the other engine in repair and good order and directed them to take it out, which they did. They made one trip in the forenoon and started out on a second trip in the afternoon, when, as before stated, the pilot struck the guard rail at the switch and threw appellee from the position in which he was standing on the pilot and the engine ran over his foot and cut it off. He was also injured about his breast.

The evidence shows that at the time this occurred the pilot of the engine was swinging low, and that this was the cause of it striking the guard rail. The evidence was, in other words, sufficient to establish negligence on the part of the servants of appellant in failing to properly repair the engine with respect to the position in which the pilot hung.

The instructions on this issue were in accordance with repeated decisions of this court, and were correct. That issue must be treated as fully settled by the verdict of the jury.

There was, however, a plea of contributory negligence on the part of appellee, and also of assumption of risk on his part, and it is earnestly contended that the instructions of the court did not properly submit the issue of assumed risk. The following instructions are singled out as those that contain glaring errors in the submission of this question:

"No. 2. While the servant assumes all the ordinary risks incident to his employment, yet a duty rests upon the company to commit no act of negligence whereby he may suffer injury, and to exercise ordinary care to protect him from danger, and in this case if you believe that the plaintiff M. H. Fitzhugh was injured while riding the pilot of one of defendant's engines, by reason of the pilot catching upon a guard rail of the track, caused by the defective condition of the pilot on the engine, and that plaintiff was engaged in the performance of his duty at the time, and that the defendant at the time of the injury knew, or by the exercise of ordinary care in making a reasonably careful inspection of the same could have known, of the condition of said pilot, and that the condition of the same was unknown to the plaintiff, and that the defendant, its agents or servants, thereby failed to exercise ordinary care to protect plaintiff from danger and that the defective condition of the pilot was the proximate cause of the injury, and that plaintiff was at the time exercising ordinary care for his own safety and had not assumed the risk, you will be authorized to find for the plaintiff and assess his damages at such a sum as will from the evidence fully compensate him for the injuries received."

"No. 3. In this case, if the injury was the result of any risk or hazard ordinary or usually incident to the plaintiff's employment, he assumed that risk and cannot recover, but he does not assume any risk created at the time of the injury by the negligence of the defendant, its agents or servants, of which he did not know, and if his injury was the result of said negligence of the agent or servant of the defendant, then he did not assume such risk."

"No. 7. The servant does not, when he enters into the service of another or while he continues in that service, assume the risk of dangers that arise from the negligence of the master, unless he is aware of the negligence and appreciates the danger therefrom, and in this case unless it appears from the evidence that the plaintiff at the time of the injury knew that the pilot of the engine was defective and appreciated the danger of riding thereon and thereby elected to take his chances or that the defect in the pilot and the danger from riding thereon was so open, obvious and imminent that an ordinarily prudent man would not have continued in the work, then the plaintiff can not be held to have assumed the risk of the injury."

The contention is that these three instructions ignored that phase of the law of assumed risk to the effect that the risk is assumed not only when the servant is aware of the negligent act and appreciates the danger, but also where the defect which causes the danger is so open and obvious that a person of ordinary prudence would not continue in the work. Instruction No. 7 is certainly not open to that objection, for it expressly embraces that phase of the law. The other two instructions deal with other phases of assumed risk, and it is true do not embrace the idea of assumption of risk by continuing in the work when the danger is patent and obvious.

Instruction No. 2 does not purport to give a complete definition of the term "assumed risk" nor to state all of the circumstances which call for its application. Therefore it can not be said that it ignores the question of assumed risk when the danger is patent.

Instruction No. 3 is correct in so far as it...