Syllabus
by the Court.
The
mere fact that the servant received injury does not
establish, even prima facie, the negligence or breach of duty
of the master.
While
in the case of a passenger the fact of an accident carries
with it a presumption of negligence on the part of the common
carrier, a presumption which in the absence of some
explanation or proof to the contrary is sufficient to sustain
a verdict against it, for there is prima facie a breach of
its contract to carry safely; a different rule obtains as to
an employé. The fact of accident carries with it no
presumption of negligence on the part of the employer, and it
is an affirmative fact for the injured employé to establish
that the employer has been guilty of negligence.
Whether
or not a defendant is guilty of negligence depends upon the
question whether he exercised reasonable care under the
circumstances existing at the time; not whether he had done
everything which it was possible to do in the light of every
possible danger that might arise.
Negligence
must be shown by evidence. Proof of injury is not proof of
negligence. The evidence, to justify a finding of negligence
must show a breach of duty on the part of the defendant, such
that a reasonable person should have foreseen would as a
natural consequence cause an injury; not necessarily would
probably cause an injury in the sense of more likely to cause
an injury than not, but the likelihood must be such that a
reasonable person could foresee that injury would result in
the ordinary course of things--that injury was one of the
probable results and likely to happen. A mere possibility of
the injury is not sufficient, where a reasonable man would
not consider injury likely to result from the act as one of
its ordinary and probable results.
Negligence
is the failure to do what a reasonable and prudent person
would ordinarily have done under the circumstances, or doing
what such a person would not have done.
For
accidental injuries, or such as occur without any act of
negligence on the part of the master, the master is not
liable to the injured servant.
In
order that an act of negligence may be deemed the proximate
cause of an injury, it must be such that a person of ordinary
intelligence would have foreseen that the injury was liable
to be produced in the act.
The
test of whether an act was the remote or proximate cause of
the injury complained of is whether the injury was one to be
anticipated.
Commissioners'
Opinion, Division No. 4. Error from County Court, Seminole
County; A. S. Norvell, Judge.
Action
by John Nagle against the Chicago, Rock Island & Pacific
Railway Company. Judgment for plaintiff, and defendant brings
error. Reversed and remanded.
ROBBERTS
C.
This
case comes from the county court of Seminole county. The
parties herein will be designated plaintiff and defendant,
the same as below. One of defendant's freight trains was
wrecked on its road near the town of Lima, on or about the
31st day of May, 1913, and several cars were demolished, and
the contents misplaced and scattered along the road and right
of way. Plaintiff was at the time in the employ of defendant
as a section hand, or common laborer, and with a large number
of other employés was called to clear the wreckage. While
performing these services in removing the débris, and
changing freight from the wrecked cars to other cars in good
condition, in passing along the road embankment, he slipped
and fell into a ditch, into which some of the débris and
broken timbers of the wrecked cars had been thrown by other
employés of the company, and in falling stepped or lit upon a
nail protruding from a piece of a board in the bottom of the
ditch, which was taken from one of the wrecked cars. The
plaintiff details the circumstances under which he was
injured as follows:
"Q. Were you injured down there in clearing that wreck?
A. Yes, sir; I was. Q. What were you doing at the time you
were injured? A. Transferring hay from the right of way to an
empty box car. I was loading the car. Q. Had the hay been
taken from the wrecked cars? A. Yes, sir. Q. What was the
condition of the ground there with reference to the covering
of hay on it? A. Well, sir, the wreckage and the woodwork of
the cars was scattered and covered up with scattered hay, as
some of the wires on the bales was loose from the hay. Q. You
had been directed to conduct the work of transferring the hay
there at the wreck, had you not, Mr. Nagle? A. The roadmaster
gave me orders. Q. Did you sustain any injury as the result?
A. Yes, sir; indeed I did, sir. Q. Just state how it
happened. A. Now, gentlemen, it was on the 31st night of May,
on Saturday night. Q. What were you doing at the time you
were injured? A. Transferring hay from the right of way to an
empty car, and had come down from the dump with a bale of
hay. Q. Did you step on something? A. Stepped on a board,
about
five inches of a nail went through my foot, and I hollowed to
some young fellow, and I turned loose of the hay. The foreman
asked me if I could walk, and I climbed upon the right of
way, and had to keep my shoe off, and just left the sock on,
and he gave me some stuff, and put a bandage on it Saturday
night at 10 o'clock, and it stayed on until the following
Tuesday afternoon, when I got to the hospital in McAlester.
Q. John, did you know that the board with the nail upturned
was there? A. No, sir; I didn't. Q. You didn't step
on it, knowing it was there? A. No, sir. Q. That was the
first you knew of it? A. Yes, sir; the first I knew of it,
sir. Q. Was it there that loose hay was scattered around? A.
Yes, sir. Q. What was the condition of the ground around
there at the time you were injured, with reference to loose
hay? A. That was on part of the ground where the loose hay
was, and the hay was the only thing I could see on the
ground. Q. Were these cars broken up at the wreck? A. Yes,
sir. Q. And the boards which came off of them scattered? A.
Yes, sir; and the ends of the cars was busted in order to get
the hay out. Q. After the cars had been moved, had the ends
been taken out before you begun to load the hay into the new
cars? A. Yes, sir; with the exception of one, and that car
had been burned. Q. That car was burned? A. Yes, sir. Q. You
say that the car to which you were taking and loading the hay
was moved so as to be nearer the car that originally
contained the hay? A. Yes, sir. Q. Is that correct? A. Yes,
sir. Q. How many trips had you made to this car? A. I
can't say. When we would get the closest hay, we had to
move further, and when we got that car full, we had to go
further after the rest. Q. The hay was partly broken up,
wasn't it? A. The wires was, sir. Q. When you took the
hay out of the cars, a good many bales were broken loose,
were they not? A. Yes, sir. Q. And consequently the hay was
scattered out? A. Yes, sir. Q. Did you notice this board? A.
No, sir. Q. Did you know it was there? A. No, sir. Q. How
large was the base of that board? A. The edges, where the
nail was, was about six inches, sir. Q. It was a large
timber, was it not? A. Yes, sir. Q. About how long was it,
John, if you remember? A. About six feet long, and broke in
two. Q. Was that timber a part of the wrecked car? A. Yes,
sir; part of the wrecked car. Q. You were walking on top of
the dump, were you not? A. Yes, sir. Q. And slipped? A. Yes,
sir. Q. And fell into the ditch? A. Yes, sir. Q. Struck the
nail in the ditch, didn't you? A. Yes, sir. Q. How deep
do you estimate that ditch was? A. Between four and five feet
from the bottom of the ditch to the top of the bank. Q. You
were walking along, carrying a bale of hay? A. Yes, sir. Q.
Was it up at the end of the ties? A. It was away from the
ties. Q. Upon the dump, then? A. Yes, sir. Q. And there was
loose hay there? A. Yes, sir. Q. And you say you slipped? A.
Yes, sir; slipped off the bank on the loose hay. Q. And down
into the ditch? A. Yes, sir; I believe it was four feet, sir,
between four and five feet sir, my belief is, from the bottom
of the ditch to the top of the bank, sir. Q. Did you fall
directly on this nail in your attempting to get out of the
ditch? A. No, sir. I held there, for the nail went through my
foot. Q. Did you land directly on the nail when you slipped?
A. The weight of the bale of hay and myself took the nail
directly through my foot, sir. Q. The timber you stepped on
was a part of the wrecked car, did you say before? A. Yes,
sir. Q. Was it a part of the car that burned? A. Yes, sir;
and the wrecking crew didn't pick it up. Q. You saw them
burn it, did you? A. Yes, sir."
At the
conclusion of the evidence the defendant requested, with
others, the following instructions, which were refused by the
court and duly excepted to by defendant:
"(3) One of the duties which the law ordinarily imposes
upon the master is to furnish the servant with a reasonably
safe place in which to work. But you are instructed that this
rule of law has its exceptions, and that such rule has no
application in those cases where the servant is at the time
employed or engaged in the work of making a dangerous place
safe, or in the conduct of work under such condition that the
condition of the place with regard to safety changes as the
work progresses."
"(4) The degree of care which the defendant company was
required to use in the conduct of its business was what is
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