Baldwin v. Hunnicutt

• Decision Date: 16 March 1936
• Docket Number: 4-4222
• Citation: 93 S.W.2d 131,192 Ark. 441
• Parties: BALDWIN ET AL., TRUSTEES MO. PAC. RD. CO. v. HUNNICUTT
• Court: Arkansas Supreme Court

93 S.W.2d 131

192 Ark. 441

BALDWIN ET AL., TRUSTEES MO. PAC. RD. CO. v. HUNNICUTT

4-4222

Supreme Court of Arkansas

March 16, 1936

Appeal from Saline Circuit Court; H. B. Means, Judge; reversed.

Petition denied.

R E. Wiley and Richard M. Ryan, for appellants.

John L. McClellan and Tom W. Campbell, for appellee.

MCHANEY J. MCHANEY, J. Supplemental opinion on rehearing.

OPINION

MCHANEY, J.

Appellee was, at the time of receiving the injuries hereinafter mentioned, an employee of the Missouri Pacific Railroad Company as a carpenter in the B. & B. gang. On February 24, 1934, while engaged in repairing the coal chute and tracks connected therewith, he received a severe and painful injury which resulted in the loss of his left eye. At the time of the injury he was working under the immediate direction of his foreman and was assisting in the removal of a 6x8 timber on the incline track, leading up to the coal chute, which is called a guard rail. These guard rails are notched down over the ends of the ties on both sides of the steel rails and about 11 1/2 inches therefrom. They are also held in place by what are called lag screws 5/8x9 which are inserted through holes bored through the guard rail and a short distance into the tie, and are driven or screwed into the tie about three inches. The lag screws have square heads and are screwed down with a wrench or driven down to fit tight on a metal washer through which the screws pass. Every second tie is so fastened with a lag screw. In order to remove the guard rails it became necessary to detach the lag screws from the ties. Appellee says the proper and customary way to do this is to unscrew them with a wrench, but that they had no wrenches that would fit the screw head. He also says another proper way to remove them is to cut around the head with an adz, insert a claw bar, and prize them loose. On this occasion, however, they did neither, but the assistant foreman put a jack under the guard rail, elevated it sufficiently to put a strain on the ties to be detached, and his foreman handed him a twelve-pound maul and directed him to strike the ties and drive them free from the lag screws. After striking the tie next to the jack two or three blows, something flew up, struck him on the lip, cutting it and slightly injuring his nose and struck his left eye with such force as to destroy the eye-ball which necessitated its removal.

He brought this action to recover damages for his injuries under the Federal Employers' Liability Act, and alleged negligence as follows: "When plaintiff struck said tie with said maul, as directed by his foreman, a large metal spike that had been negligently and carelessly left on said track by the agents, servants and employees of the defendants, and near said tie which plaintiff struck, was caused to be knocked upward and thrown violently against the plaintiff," etc. Trial resulted in a verdict and judgment against appellants in the sum of $ 10,000.

For a reversal of the judgment, appellants argue a number of assignments of error. In view of the disposition we make of the case, we think it unnecessary to discuss them all in detail. It is very earnestly insisted that the evidence is insufficient to establish negligence, or to take the question of negligence to the jury. While no witness testified that "a large metal spike had been negligently and carelessly left on said track--and near said tie which plaintiff struck," something did fly up and hit him causing the injuries complained of. No witness testified as to what it was that flew up and hit him, whether a loose spike lying on the tie or the guard rail or the track, whether the rail spike holding the steel rail on the tie being struck or whether the lag screw from which the tie was being driven broke loose therefrom, and flew up and hit him. As stated above, appellee testified there were two safe and customary ways to remove the lag screws, either with a wrench or with an adz and a crow bar, but that he had never pounded them loose with a maul. Witnesses for appellants testified that, in addition to these two ways to remove them, the method employed at the time of this injury was also used, and that all three methods were considered safe and proper. The majority are of the opinion that the evidence was sufficient to go to the jury on the question of negligence since appellee was acting under the immediate directions of his foreman in the manner of doing the work, and that the injury received or some injury might reasonably have been foreseen by the exercise of ordinary care as to the manner of doing the work by the foreman. Mr. Justice BUTLER, Mr. Justice BAKER and the writer do not agree that any negligence has been established, but on the contrary a directed verdict should have been given appellants.

Another assignment of error relates to the impaneling of the jury to try the case. Twelve of the regular panel were out on another case. The court directed the sheriff to call twelve bystanders whose names were placed in the box with the remaining members of the regular panel. The clerk by direction of the court drew eighteen names from the box. The court examined them on their voire dire, and all appeared qualified. Counsel for appellee was then asked if he desired to ask any further questions, and answered in the negative. Counsel for appellants was then asked the same question by the court, when the following occurred: "Mr Ryan: I want to ask a question or two, but I would like to know the jurors, I don't know them by name; will you permit me to ask who No. 1 juror is? I don't know them. The...