Bryant Lumber Co. v. Stastney

• Decision Date: 21 September 1908
• Citation: 112 S.W. 740,87 Ark. 321
• Parties: BRYANT LUMBER COMPANY v. STASTNEY
• Court: Arkansas Supreme Court

112 S.W. 740

87 Ark. 321

BRYANT LUMBER COMPANY v. STASTNEY

Supreme Court of Arkansas

September 21, 1908

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

Judgment reversed and cause remanded.

Mehaffy & Armistead, for appellant.

1. Where a specific instruction clearly applying the law to the facts in the case is refused, even though the law in a general way is covered by other instructions, such refusal is error. 52 Ark. 45; 50 Ark. 545; 69 Ark. 134; 76 Ark. 227; 77 Ark. 128; Id. 201.

2. The common-law rule with reference to classification of employees will control in this case. The foreman, having no authority to employ or discharge, but only to direct those under him in doing their work, was a fellow servant with appellee, and his negligence, if any, will not be imputed to the company. 58 Ark. 306; 39 Ark. 39; 42 Ark. 42. See, also, 2 Labatt on Master and Servant, §§ 519, 520, 521; Id p. 1581. The duty to provide a safe place in which to work did not rest upon the foreman in any event. That duty is upon the master only, and is not delegated.

3. It is settled that negligence which contributes to produce the injury complained of precludes recovery. Contributory negligence was a defense in this action. A specific instruction submitting such defense based upon the evidence was erroneously refused, even if a general instruction had been given embracing this theory. 80 Ark. 454. That which is mere accident only, something which could not reasonably have been anticipated, affords no basis for recovery in case of injury. 79 Ark. 81; Id. 437; 82 Ark. 375. The master is not an insurer of the servant's safety, but is held to ordinary care only to provide a safe place in which, and safe appliances with which, to work. 80 Ark. 263.

Jones & Hamiter, for appellee.

Under the facts in this case, the defense of fellow servant cannot apply, even under the common-law rule. Appellant was not only a lumber company, but also operated a railroad. It comes within the provisions of section 6732, defining it to be a railroad; also of the fellow servant statutes. Id. §§ 6658-6660. And within the lookout statute. Id. § 6607. The foreman, having charge of the work, stood in the place of the company, as its representative. If his negligence caused the injury appellant is liable, unless appellee was guilty of negligence contributing to the injury. 77 Ark. 367.

OPINION

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 two feet and a half from the track, a sufficient distance for the engine and cars to clear it, and this lumber had only been stacked about ten 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 co-worker, 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 forty 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 noticed that two pieces were sticking out from the lumber pile, about four and a half 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 due to the negligent manner in which these two sticks were allowed to extend over the track or the failure of the employee 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 co-worker did so and followed the foreman on to 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...