Bryant Lumber Co. v. Stastney

• Decision Date: 21 September 1908
• Citation: 112 S.W. 740
• Parties: BRYANT LUMBER CO. v. STASTNEY.
• Court: Arkansas Supreme Court

112 S.W. 740

BRYANT LUMBER CO. v. STASTNEY.

Supreme Court of Arkansas.

September 21, 1908.

Appeal from Circuit Court, Perry County; Robert J. Lea, Judge.

Personal injury action by Mike Stastney against the Bryant Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Mehaffy & Armistead, for appellant. Jones & Hamiter, for appellee.

HILL, C. J.

Mike Stastney was a Bohemian about 20 years of age, and was employed by the Bryant Lumber Company to work in its lumber yards. He spoke but little English. He was employed in piling boards, and the foreman came to him and directed him to go to a different place to work, and he followed the foreman in going to the new duty assigned to him. The lumber company had a spur track running into its lumber yards, upon which they used a switch engine for the purpose of pulling the cars to receive its lumber. There was a pile of lumber stacked about 2½ feet from the track, a sufficient distance for the engine and cars to clear it, and this lumber had only been stacked about 10 minutes prior to the occurrence in question. It was necessary to go over or pass by this pile of lumber in going to the new work, assigned to Stastney, and he and his coworker, who was also directed to go to the new place of work, followed the foreman when he gave them the order to work at the new place. The foreman went on top of this pile for the purpose of seeing that the track was clear. The engine was then within about 40 feet of it, and was approaching. The foreman saw that the lumber pile was sufficiently distant from the track to be clear of the engine; but finally he noticed that two pieces were sticking out from the lumber pile about 4½ feet above the ground, and then he knew that the cars would strike the pieces and knock the pile down. He jumped, and saved himself; but Stastney did not get off in time, and the pile was knocked down by the engine and injured him. The lumber had been piled by other laborers, who were also under the supervision of the foreman; and the cause of the pile of lumber falling was the negligent manner in which these two sticks were allowed to extend over the track, or the failure of the employé running the engine to discover that fact. There was a curve near this place, and it is probable that the engineer in charge of the engine could not have seen the danger. For the injury received, Stastney brought suit and recovered judgment in the circuit court, and the lumber company has appealed.

Stastney testified that the foreman told him to come with him and load the car, and he understood that he was ordered to go with the foreman; and he and his coworker did so, and followed the foreman onto the pile of lumber which fell, and received no warning of the insecure position of the pile to which he was carried on his route, nor notice from the foreman of the impending danger from the approaching engine. On the other hand, the foreman testified that he did not tell him to follow him, but merely directed him to go to another pile of lumber to work there, and that his own act of going upon the lumber pile was not connected with carrying these men to their new place of work, but merely to see if the track was clear, which was a part of his duty as foreman of the yard; and he says that immediately upon discovery of the peril he gave notice by signs and voice to Stastney. This conflict as to the facts upon which the case hinges is irreconcilable, and should go to the jury, upon proper instructions, for their determination.

The defendant's theory of the case was that the act causing the injury to the plaintiff was due to the negligence of his fellow servant. This occurred before the passage of the act of March 8, 1907 (Acts 1907, p. 162). The court refused the instructions presenting...