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

• Decision Date: 12 November 1917
• Docket Number: (No. 225.)
• Citation: 198 S.W. 529
• Parties: CHICAGO, R. I. & P. RY. CO. v. HICKS.
• Court: Arkansas Supreme Court

198 S.W. 529

CHICAGO, R. I. & P. RY. CO. v. HICKS.

(No. 225.)

Supreme Court of Arkansas.

November 12, 1917.

Appeal from Circuit Court, Monroe County; Thos. C. Trimble, Judge.

Action by C. D. Hicks against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

Thos. S. Buzbee and Geo. B. Pugh, both of Little Rock, for appellant. G. Otis Bogle, of Brinkley, and Manning & Emerson, of Little Rock, for appellee.

WOOD, J.

In February, 1914, the appellee was employed by the appellant to work at its coal chute near the town of Brinkley. The appellant maintained at this coal chute a pit about 8 feet square and 12 feet 2 inches deep, with a concrete floor, over which was set the pumping machine, consisting of an engine and pump which was used for pumping water into the tank and to pull coal up the chute. Across the pit was a plank 2 inches thick, 10 inches wide and 14 feet long. The pit stood from 20 to 24 inches from the wall of the coal chute, so that the plank could be laid across the pit, extending over one side 20 to 24 inches, and extending over the other side about 4 feet. The plank was not nailed or fastened down, but was left loose so that it could be easily removed when it was necessary to go down into the pit to adjust or repair the machinery extending down into the pit.

Appellee's title was "coal chute foreman." He looked after the coal chute engine, started, stopped, and oiled it, made out reports, and helped to coal engines. The coal chute engine hoisted water into the tank which was used in the trains and also furnished coal for the engines to run with. It was appellee's duty to see that the water and coal were supplied. Mr. Gordon was the water service foreman. He was over appellee. Appellee was required to follow his directions. He told appellee to keep the box oiled. Appellee was standing on the plank oiling the box connected with the engine, and while so doing the plank turned over, and appellee fell to the bottom of the pit on his back, receiving the injuries for which he instituted this suit.

One Sangster, who employed appellee, told him not to do any repairing at all. He said they had carpenters to do that work. On Saturday before the injury appellee called Mr. Gordon's attention to the condition of the plank, that the same was loose, and Gordon said "he would look after it." If the plank had been fastened, appellee would not have fallen.

The above facts were developed by the testimony of the appellee on his direct examination, and on his cross-examination he stated that he had charge of the coal chute and everything down there, including this plank. He was a foreman and had two men under him. When anything needed to be done he went ahead and did it, except the repair work. Appellee began work there in February, and worked until he was injured in August. During that time the plank was right there across the pit. He would say that he had walked the plank 200 or 300 times. There was plenty of room to lay the plank across the pit and be perfectly safe. It was perfectly secure and solid as long as it laid up there. Appellee was asked if Mr. Gordon had anything to do with employing him, and answered "No;" that Gordon was foreman of the water service crew. When appellee was injured it was the second time that he had been on the plank that morning. The engine had been running about twenty minutes. Appellee did not notice to see whether the plank was over the edge far enough. He was under the impression that the plank was safe. When the water service crew came the plank was removed in order to get down in the pit to repair the machinery. The rest of the pit was covered over. Appellee thought the plank was safe because he had been instructed that it would be fixed. At the time appellee was injured he went and used the plank just like he had been doing for six months. "Mr. Gordon told me the Sunday before I got hurt that he would look after it." Appellee gave the matter no further thought and relied on what Mr. Gordon told him. Mr. Gordon was right at the pump at the time. Mr. Gordon did not employ appellee, and had no right to discharge him. His business was to look after the pump and keep it in proper condition. Appellee's business was to oil it, start it, and keep it running.

Witness Sangster testified that he was in the employ of the appellant and was their agent, in charge of the yard and all railroad work. He had charge of the coal chute. He employed C. D. Hicks, the coal chute foreman. His duties as foreman were to see that coal and water were supplied to the engines and to see that everything was cleaned up around there. Witness told Hicks to look after everything and keep it in shape, and it was his duty to see that the plank was safely put across the pit. He never told Hicks not to nail the plank down, but did tell him not to make any changes in the coal chute, and not to make any repairs around there when it required carpenters to do the work. Gordon had no authority to send anybody out there to nail down that plank. Witness did not employ Gordon, but knew some of his duties and knew what his duties were down there.

The appellee, in rebuttal, denied that Sangster had ever cautioned him about the plank; said that if he had done so appellee would have nailed it down.

Appellee set up in his complaint that appellant was negligent in not preparing him a safe place to work; that he did not know at the time of accepting employment that the plank extending across said pit was loose, and thought that it was safe for him to work where he did; that appellant did...