Boyle-Farrell Land Company v. Haynes

• Decision Date: 26 November 1923
• Docket Number: 3
• Citation: 256 S.W. 43,161 Ark. 183
• Parties: BOYLE-FARRELL LAND COMPANY v. HAYNES
• Court: Arkansas Supreme Court

256 S.W. 43

BOYLE-FARRELL LAND COMPANY v. HAYNES

161 Ark. 183

No. 3

Supreme Court of Arkansas

November 26, 1923

Appeal from Saline Circuit Court; W. H. Evans, Judge; affirmed.

Affirmed.

Coleman Robinson & House, for appellant.

1. Appellee, at the time of the injury, was a mere licensee. In order to hold the employer liable, the relation of master and servant must exist at the time of the injury. The injury must have been received in connection with some service then being rendered by the employee in the line of his duty and because of the negligence of the employer. This relation always rests upon contract, express or implied. 146 N.W. 14. The burden of proof was on the appellee to establish a custom in relation to employees riding the train for the purpose of consulting the physician and for other purposes connected with their employment, and knowledge of such custom on the part of the company's official. 96 Ark. 558; 37 L. R. A. 418; 107 Ark. 93; 66 P. 909; 2 Hutchinson on Carriers, § 1000; 3 Id. § 1205; 128 N.E. 888; 130 N.E. 304; 223 Mass. 492; 112 N.E. 79; 134 N.E. 327. The burden was on him also to establish the right to ride on this train, and the extent thereof, if such right existed. 122 Ark. 68. As a licensee upon appellant's train, the company owed him no duty except to refrain from injuring him after discovering his peril. As a licensee by permission and not by invitation appellee took his license with its concomitant risk. 114 Ark 218; 103 Ark. 226; 90 Ark. 279.

W. D. Brouse and Mehaffy, Donham & Mehaffy, for appellee.

1. The contract of employment vested in appellee a right to transportation on the train. Having contracted to furnish appellee treatment by the company physician, the duty rested on it to furnish him transportation from the camp to the physician's office for the purpose of consulting him, when he was able to travel, or to send the physician to him, if he was not able to make the trip. 58 N.E. 738; 26 Cyc. 1050; 139 Ark. 32; 5 Labatt on Master and Servant, 2d ed., 6185; 66 S.W. 639; 54 S.W. 791; 79 Ark. 484; 122 S.W. 458. The circumstances affecting the making of a contract should be considered in construing it. 26 Cyc. 969. And custom is to be taken into consideration in the making and construction of a contract of employment. 78 Ala. 341; 86 Ga. 408,12 S.E. 678; 50 N.E. 306; 14 So. 241; 36 Md. 567; 167 Mass. 544, 46 N.E. 117; 125 Mich. 594, 84 N.W. 1095; 180 Mo. 241, 79 S.W. 136; 10 A.D. 603, 42 N.Y.S. 370; 196 Pa.St. 580, 46 A. 934; 66 N.W. 931; 119 Wis. 429; 96 N.W. 826; 92 F. 749.

2. The cases cited by appellant in support of its contention that appellee was a mere licensee are not applicable to the case at bar, and are not in point. Appellee was on the train by invitation, and not as a licensee. As distinguishable between a bare licensee and an "invitee," see 90 Ark. 279. See also 85 Ark. 326; 89 Ark. 103; 90 P. 501.

OPINION

MCCULLOCH, C. J.

Appellant is a domestic corporation, and operates a lumber mill at Farrell, in Pulaski County. It also operates a log railroad extending from the mill to the woods camp in Saline County, and thence to woods where timber is cut for the mill. The cars are moved by a steam engine.

Appellee was employed as a log cutter, and while so employed and while riding on the train between Farrell and the woods camp, was injured on August 6, 1921. This action was instituted by appellee to recover damages on account of said injuries. It is alleged in the complaint that appellee was riding on the train, pursuant to contract with his employer, and that his injuries occurred in a wreck of the train, caused by negligence of the appellant in permitting the railroad track and a flange on a wheel of one of the cars to get out of repair, and in operating the train at dangerous speed.

Appellant, in its answer, denied that appellee had any contractual right to ride on the train, but that he was a mere licensee when so riding; denied that there was any negligence on the part of appellant in any respect, and pleaded contributory negligence on appellee's own part.

A trial of the case resulted in appellee's favor, awarding damages in the sum of eighteen thousand five hundred ($ 18,500) dollars.

The first contention of appellant's counsel is that the verdict is not sustained by the evidence, and that the court erred in refusing to direct a verdict in appellant's favor. In deciding this question we must, of course, give the evidence its strongest probative force in appellee's favor. Thus viewing the evidence, the established facts are as follows: Appellee was, as before stated, employed by appellant as a log cutter. He resided at the camp, and worked in the woods. At the time of his injury he had been working for appellant for two months, and had worked for appellant during the year 1914, and was conversant with the method of work and the dealings between appellant and its employees for ten years prior to his injury. Under the contract between appellant and its employees, a certain sum each month was deducted out of the wages of the employees to cover the cost of medical attention, and, for the sum so deducted, appellant bound itself to furnish such attention. A physician residing at Farrell was engaged by appellant to attend the employees when ill or injured, and the deduction from the wages of the men was paid to the physician for his services. The physician attended the men at their homes, when ill or injured and unable to go to Farrell, and the men went to see the physician at his office in Farrell when physically able to do so. Appellant provided means for the men to go, when necessary. They were permitted to choose their own method of getting to Farrell, and were allowed to ride on the train for that purpose. The men sometimes walked, sometimes rode in other conveyances, and sometimes rode on the train. Persons other than employees were permitted to ride free on the train. The custom had been general for a number of years for the men to ride on the train whenever they wanted to. Appellant also carried the men on the train from the camp to the place of work in the woods. One train ran between the camp and Farrell, a distance of six or seven miles, and another between the camp and the woods. Both trains hauled logs, and to the Farrell train there was attached a box- car, which was used in hauling groceries for the men at the camp, and in which persons were permitted to ride. Appellee had been slightly ill of malaria for about a month before his injury, and had been treated by the physician. On the morning of the day the injury occurred appellee desired to go to Farrell on the train to see the physician, and, as the train was about to leave the camp for Farrell, he mentioned this to the woods superintendent, who directed him to go ahead on the train. This superintendent had general supervision and control over the men who worked in the woods--he employed and discharged them. He controlled all of the operations at the camp and in the woods, caused the railroad track between Farrell and the camp and the woods to be inspected and repaired when necessary, and attended to furnishing medical attention to the men when they became ill. Appellee rode on the engine from the camp to Farrell, and, after seeing the physician and getting medicine, he boarded the grocery car in which passengers rode, for the return trip to the camp. When about two miles out of Farrell the train was wrecked on account of rotten cross-ties, which caused the track to spread. The passenger or grocery car which appellee occupied was overturned, and he was pinned underneath. His left thigh bone, in the middle third, was broken, and his right leg was considerably bruised. He remained under the car an hour before he could be got out. He was carried to Farrell, and received surgical treatment. The bone was set, and he remained in bed seven weeks, and was then permitted to get up and walk around on crutches. The evidence shows that, on account of the break being oblique, the bone did not unite and heal together, but threw out a callus, and this, with the contraction of the muscles, permitted the ends of the bone to slip. There was not enough strength in the bone to bear the man's weight. This was not, according to the evidence, caused by any improper surgical treatment in setting the bone, but was the natural result of the character of the injury. Shortly after getting up, appellee's crutch slipped so as to throw his weight on his left leg, and the broken ends of bone were again disunited. Appellee was then carried to a...