Chicago Mill & Lumber Co. v. Cooper

• Decision Date: 12 April 1909
• Parties: CHICAGO MILL & LUMBER COMPANY v. COOPER
• Court: Arkansas Supreme Court

119 S.W. 672

90 Ark. 326

CHICAGO MILL & LUMBER COMPANY v. COOPER

Supreme Court of Arkansas

April 12, 1909

Appeal from Mississippi Circuit Court; Frank Smith, Judge; reversed in part.

Judgement affirmed as to corporation but reversed and dismissed as to defendants.

W. J Orr, W. J. Lamb and E. E. Wright, for appellants.

1. A verdict should have been directed for defendants, there being no legal evidence to prove actionable negligence. 57 Ark 468; 145 U.S. 593; 144 Id. 408.

2. The mere happening of the accident and injury is not sufficient to shift the burden from plaintiff. The burden is on the plaintiff. 46 Ark. 555; 111 Tenn. 472; 44 Ark. 527; 51 Id. 479; 79 Id. 81; 57 Id. 479; 148 F. 369; 132 Id. 593; 179 U.S. 658; 166 Id. 617; 83 Iowa 105; Mo. 268; 90 Cal. 497; 46 Oh St. 386; 42 Mich. 41; 65 Mid. 438; 71 C. C. A. 558; 81 Id. 559; 1 Bailey on Master & Servant, §§ 454a, 1597; 2 Id. § 833.

3. No defect was shown in the engine at the time of the accident, nor that a defect was the proximate cause of the injury. 179 U.S. 658; 44 Ark. 405; 119 Mass. 412; 40 N.E. 212; 91 Ky. 526; 98 Ala. 570; 48 Ark. 460; 2 Labatt on Master & Servant, § 820; 69 Me. 174.

4. Defendants performed their whole duty when they supplied an instrumentality reasonably safe when carefully used by the fellow servants of plaintiff. 1 Labatt on Master & Servant, § 390; 90 Mich. 31; 126 N.Y. 569; 109 Id. 496; 84 Wis. 636; 46 Minn. 473; 135 Mass. 209; 179 Penn. St. 473.

5. The evidence of the alleged defect was incompetent and inadmissible.

6. The verdict is contrary to the physical facts of the case. 79 Ark. 608; 131 Mo. 256; 187 Id. 227; 171 Id. 116; 91 S.W. 505; 137 F. 567; 6 Am. Neg. Cases, 228; 106 S.W. 751; 103 Id. 124, and many others.

6. The evidence shows that neither the Transportation Company nor O'Bryan was liable at all.

Armstrong & Gravette and J. T. Coston, for appellee.

1. When the master owes his employee a duty, and fails to discharge it, which contributes to an injury, he is liable by reason of his own negligence, notwithstanding the negligence of a fellow servant may have been the immediate or direct cause of the injury. 54 Ark. 299; 67 Id. 8; 113 S.W. 359; 99 F. 51; 203 U.S. 473; 106 Id. 702, and others.

2. Review the instructions and contend there is no reversible error.

3. Evidence as to the condition of the engine and its defects just prior to the injury was competent. 1 Labatt on Master & Servant, 137; 115 N.W. 172; 88 Id. 998; 111 Id. 847-8; 57 N.E. 865; 64 N.W. 1006; 47 Id. 1042; 12 So. 179; 33 Am. Rep. 56; 16 N.E. 152; 53 Ark. 462; 43 Ill. 343; 19 Kans. 267. A reasonable presumption arose that the defect continued to the time of the injury. Cases supra; 58 Ark. 129; 48 Id. 554; 76 S.W. 413.

4. The master had notice of the defect. 104 Ill. 641; 43 Ill.App. 83.

5. The silence of O'Bryan creates a strong presumption that the leaky valve was the proximate cause. 32 Ark. 346; 77 Minn. 452; 6 Thompson, § 7656; 55 Am. Dec. 682; 25 So. 978; 54 F. 843; 160 U.S. 383; 21 S.E. 1028; 30 P. 418; 13 S.E. 751.

6. 97 S.W. 279 is a case like this and settles this.

OPINION

MCCULLOCH. C. J.

This is an action instituted by the plaintiff (appellee), Tom Cooper, against three defendants, the Chicago Mill & Lumber Company, the Cairo, Memphis & Southern Railway & Transportation Company, and Jack O'Bryan, to recover damages alleged to have been sustained by him on account of their alleged negligence. The Transportation Company and the Lumber Company are both Illinois corporations. The Transportation Company was, at the time of the injury to plaintiff, a common carrier operating a line of boats and barges on the Mississippi River. The Lumber Company owned and operated sawmills at various places, and was not a common carrier, but it owned and operated a log train, composed of an engine and log cars, for the purpose of hauling logs from the tracks of the Jonesboro, Lake City & Eastern Railway Company at Barfield, in Mississippi County, Arkansas, to the Mississippi River, to be loaded on boats and barges operated by the Transportation Company. The Transportation Company had no interest in the engine and cars on track, but merely received the logs as a common carrier for transportation in its barges.

The plaintiff and the defendant, O'Bryan, were both working for the Lumber Company at the time of the former's injury. O'Bryan was engineer of the log engine, and sometimes acted as foreman. The plaintiff's duties were to fire the engine up in the morning and to assist in unloading logs from the cars at the boat landing. The logs were piled on the cars, and were held there by means of wooden stakes or standards fastened in cuffs on the sides of the cars, and were unloaded by cutting the stakes or knocking them out of the cuffs so as to permit them to roll off. This work was done by plaintiff under the orders of O'Bryan. At the time plaintiff was injured, the engine had pulled up to the river bank where the logs were to be unloaded, and stood there about four hours before any attempt was made to unload the logs. The engine was attached to two cars, each containing two tiers of logs and each tier containing six or eight logs. The engine was standing backed up to the cars--that is, with the rear end towards the cars. After the engine and cars had stood there about four hours, O'Bryan directed the plaintiff to knock the stakes out and to unload the cars, and he proceeded to do so. He was instructed to be in a hurry about it, as the derrick men were waiting on him. Plaintiff commenced cutting the stakes, beginning at the stake nearest the engine and walking backwards from each stake to another as he cut it out. He removed the three stakes that held one tier of logs on the car, and two which held the second tier, and was cutting the third when the engine suddenly moved back against the car and jostled the logs, causing one of them to roll off and strike him. He was severely injured. It is alleged in the complaint, and counsel for plaintiff contends that the evidence tends to show, that the engine moved or "walked," as it is termed, by reason of an accumulation of steam in the cylinder, and that this condition was brought about on account of a defect in the engine. It is alleged in the complaint that the steam valve was defective, and had been for a period of two years prior to the accident, in such a way that steam would pass through the valve and escape into the cylinder in such quantities as to cause the engine to move. It is also alleged that the plaintiff was working for both the Transportation Company and the Lumber Company at the time of his injury, that both of these defendants were common carriers, and that both were guilty of negligence in permitting the engine to remain in its defective condition, and in allowing it to be used in that condition. It is also alleged in the complaint that, if the engine did not move on account of the accumulation of steam in the cylinder by reason of the defective condition of the valve, O'Bryan caused it to move by applying the steam, and that he did so without warning to plaintiff. This is the only charge of negligence in the complaint against O'Bryan.

All of the defendants in a joint answer denied the charges of negligence in the complaint, and alleged that the plaintiff was working in the employment of the Lumber Company at the time of his injury.

The plaintiff recovered judgment for damages in the sum of $ 8,000 against all three of the defendants, and they appealed to this court.

The evidence fails to sustain the allegation that the Transportation Company was plaintiff's employer, or that it was in any way responsible for the injury. Therefore the judgment must be reversed as to that defendant. It is true that the plaintiff testified in general terms that he was employed by that company; but subsequent portions of his testimony show that he did not know which one of the defendant corporations he was working for. He was employed by a foreman who worked for both companies, and he thought that he was employed by the Transportation Company. The other evidence in the case showed beyond dispute that the Transportation Company did not employ him, and had no part in the service he was performing, nor interest in the operation of the log train. It was owned and operated by the Lumber Company in connection with its sawmill business.

Neither does the evidence sustain the charge of negligence against O'Bryan, and the judgment as to him must also be reversed. The only charge of negligence against him in the complaint is the alternative one that, if the engine did not move on account of the steam leaking into the cylinder, he caused it to move by applying the steam; but there is no proof at all that he was on the engine at the time. On the contrary, the only testimony concerning O'Bryan's situation at the time is that of the plaintiff himself, who said that O'Bryan was standing on the ground twelve or fifteen feet away when he last saw him, which was at the time he gave the order to cut the stakes. This was two or three minutes before the engine moved, according to plaintiff's estimate of the time.

Negligence must be proved by the party alleging it. It will not be presumed. O'Bryan was present at the trial, but did not testify. He was not compelled to do so, as there was no testimony adduced tending to prove negligence on his part in the particulars charged in the complaint. His failure to testify, under those circumstances, raised no presumption against him, and there was nothing for him to rebut.

The remaining questions pertain to the alleged responsibility of the Lumber Company. As before stated, it is undisputed that the plaintiff was injured while in the service of that company, but it is...