Chicago, R. I. & P. Ry. Co. v. Isom

• Decision Date: 29 April 1918
• Docket Number: (No. 326.)
• Citation: 203 S.W. 271
• Parties: CHICAGO, R. I. & P. RY. CO. et al. v. ISOM.
• Court: Arkansas Supreme Court

203 S.W. 271

CHICAGO, R. I. & P. RY. CO. et al. v. ISOM.

(No. 326.)

Supreme Court of Arkansas.

April 29, 1918.

Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge.

Action by Joseph Isom against the Chicago, Rock Island & Pacific Railway Company and others. Judgment on verdict for plaintiff, and defendants appeal. Affirmed.

This action was brought by the appellee against the appellants to recover damages for personal injuries.

The appellee testified, among other things, that he was in the employ of the defendants, as a section hand, and was engaged in shoveling and placing cinders on the ground while other employés of appellants were unloading cinders from an open coal car; that some of the cinders had run together and "made what was called clinkers"; that while appellee was stooping down to get a shovel of cinders in the performance of his duty, another employé, without any warning to appellee, or without exercising any care as to where he was throwing cinders, negligently pitched a large clinker upon plaintiff's head, inflicting upon him serious injuries.

The appellants set up the defenses of contributory negligence and assumed risks.

The testimony on behalf of the appellee tends to show that he was shoveling cinders and spreading them on the ground as they were thrown from an open car of appellants. The foreman told appellee to stay back of the car, and ordered the men not to throw coal over in such manner as to hurt anybody. While appellee was stooped over, like a man is when shoveling, one of the men in the car threw a clinker upon his head. The clinker would weigh from 15 to 30 pounds. It knocked appellee senseless, cut a gash in his head, and caused the blood to run all over him. It caused him severe pain when first received, and had not stopped at the time of the trial. The blow gave the appellee bad hearing in one ear; his hearing was always good before that, and bad since. He had a whistling and ringing in his right ear after the blow that he did not have before. Appellee was working 8 or 10 feet away from the car where the men were throwing out the cinders. There was nothing to prevent the men, who were throwing out the cinders, from seeing appellee if they had looked. Appellee could see their heads over the top of the car. The car was an ordinary flat car. The foreman had directed the men to drop the clinkers down.

One witness testified that he saw appellee when he got hit in the head with the clinker. When the clinker hit him he sank to the ground with a groan. The men in the car throwing the clinkers could have seen appellee if they had looked, as their heads were above the top of the car. Witness saw appellee go to the ground when the clinker struck him, and then looked up and saw the men in the car.

Silvia Isom, daughter of the appellee, testified that there was a gash 1½ inches long and 1 inch deep on the top of her father's head. She further testified, over the objection of appellant that her father did not complain of his hearing before being hurt. That she did not notice before then that he could not hear; since the injury she had to speak to him the second time to make him hear.

Dr. Williams stated that he had been a practicing physician 35 years, and in his practice had tried a good many cases for loss of hearing; he had not had occasion to study the hearing as an expert; however a number of such cases had...