Chicago, Rock Island & Pacific Railway Company v. Payne

• Decision Date: 26 January 1920
• Docket Number: 134
• Citation: 217 S.W. 810,141 Ark. 617
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. PAYNE
• Court: Arkansas Supreme Court

217 S.W. 810

141 Ark. 617

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. PAYNE

No. 134

Supreme Court of Arkansas

January 26, 1920

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

Judgment affirmed.

Thos S. Buzbee and Geo. B. Pugh, for appellant.

1. The evidence was not sufficient to justify the court in submitting to the jury the question as to whether or not the hernia was caused by the accident in which plaintiff was struck by a maul. The only witness was Doctor Reed, and his testimony is not definite enough to justify the jury in saying the hernia resulted from the accident. 123 Ark. 124.

2. The release was binding and prevented a recovery. 102 Ark. 616; 115 Id. 123; 119 Id. 95; 117 Id 524.

3. No negligence was proved warranting a recovery. It requires no skill, experience or judgment to do such an act as putting a handle in a maul, and it was not incumbent on the master to have someone to examine the maul every few minutes to see whether the handle was on tight or not. The plaintiff could readily ascertain the safety of the maul as a tool by examination and the master was not an insurer as to ordinary tools in everyday use. 66 S.E. 134; 199 S.W. 1074; 57 Ark. 503; 108 Id. 377; 130 Id. 486.

4. The court erred in its instructions.

5. The verdict is excessive. 147 N.W. 279, and cases spra.

Fred A. Isgrig and Fred A. Snodgress, for appellee.

1. The evidence is sufficient to show that the hernia was caused by being struck by the maul.

2. The instructions as to the release follow our law. 93 Ark. 589; 193 S.W. 791.

3. Negligence was proved, and the verdict is not excessive. 170 N.W. 279; 8 R. C. L. 673; 78 S.W. 744; 5 Current Law 931; 85 S.W. 669; Id. 785; 78 P. 866; 9 N.E. 453; 27 Id. 607; 38 Id. 358; 13 Cyc. 123; 58 S.W. 923; 20 L. R. A. (N. S.) 458; 15 Id. 779.

OPINION

WOOD, J.

The appellee instituted this action against the appellant for damages for personal injuries.

The appellee, a carpenter and cabinet maker, was in the employ of the appellant at its shops in North Little Rock. He was engaged in safety appliance work and was in charge of such work. He had an assistant, usually called a knocker or helper. Safety appliance work requires the climbing up on cars, the fixing of grab irons, running boards, and things of that kind. Appellee was engaged in putting steel plates as a partial equipment on one of appellant's cars, and while so engaged he was severely injured.

Appellee describes the circumstances of the occurrence as follows: "At the time I received my injuries, Dewey Dees was my helper. I went to the second car, and Jess Bargle was holding the chisel board. It was a long board about six or seven feet long that holds the bore, while Dees takes the rivet, you know, and cuts the rivets off. It is a chisel bar, made like a cold chisel. He cuts the rivets with a large maul, weighing about eight or ten pounds. Dewey Dees was striking it and Jess Bargle was holding it. The first or second lick he struck his chisel bar it broke, and we had to write a requisition in for a new one. I told Jess to take the old one back and return it back for a new one, and bring the new one back with you. In the meantime, well, there was a fellow worker right close by and he said, 'I will lend you mine, it is all right,' and to keep from detaining the company's work, I picked the bar up, which I had a right to do in the absence of my helper. Dewey Dees was cutting these steel rivets off about five or six licks to the rivet; he was putting in good licks, and the maul slipped off of the handle, and flew directly as he had made his full lick. He couldn't have done otherwise, and it struck me in my groin right in there. * * * Those mauls are made with a small side and a large side, and you put the handle on from the small side and wedge it over the wide side, and that flared the handle on from the large side, and wedged it on to the small side, and, therefore, as soon as that was used, it slipped off and flew off of the handle. I did not have an occasion to examine the handle at all because I had the utmost confidence in the man who put them on. Mr. Cleveland was the man who saw after putting the handles on. He was in the employ of the Rock Island, and has been for a number of years. Mr. Cleveland had put this handle on the day before the maul came off and struck me. I did not examine the maul to see that the handle was in right or not. The fact of the business is if we had examined it we could not have told unless we took the maul off to see."

Witness Dewey Dees testified on behalf of the appellant as follows: "I quit the Rock Island in November, 1917, and have not worked there since. I have no connection with the Rock Island now. I was working for the Rock Island when Payne got hit with a maul. I was using the maul when it came off the handle and hit him. I never examined the maul. The wedge was still in the maul. The handle had just been put in there the day before. Payne and myself looked at the maul before we started to using it to see whether the handle was in the maul right or not. The maul had become loose once or twice before. The reason we examined it was because it had come loose and we examined it to see if it was on tight. Sometimes when they were new they would come off, so we looked at the maul, but it came off anyhow."

Another one of appellant's witnesses testified in part as follows: "I examined the maul and the handle as to how it was put on. The handle was properly put on, but the wedges came out. It does not make any difference from what side the handle is put in. The eye of the maul is the same size all the way through. This was a new handle. It frequently happens that the maul will slip off of the handle, not as soon as you put them on, but after they are used a while. The use of the maul sometimes causes wedges to fly out. You can use the iron or wood, either one, and they will come out."

The appellee in his complaint alleged that the appellant had furnished the appellee with the maul which had been negligently and carelessly repaired and that he, appellee, did not know and could not have known that the maul was in the condition described until after his injury.

Appellant in its answer denied all the material allegations of the complaint and alleged as affirmative defenses that the appellee assumed the risk and that appellant had settled with the appellee and had obtained a general release from appellee for all damages, if any, which he had sustained by reason of the injury.

The above are substantially the facts upon which the appellee predicated his cause of action and upon which he recovered judgment against the appellant in the sum of $ 5,000. From which is this appeal.

The court at the request of the appellant instructed the jury "that when the plaintiff undertook to work for the defendant he assumed the risk of any and all injuries ordinarily incident to the work and that might result, without negligence of the defendant, from the character of work he was doing."

The issues of negligence and of assumed risk were submitted to the jury under proper instructions and there was substantial evidence to sustain the verdict.

The testimony on behalf of the appellee tended to prove that the mauls were made with a small side and a large side; that the handle should be put on from the small side and wedged over the wide side; that when so put on the handle is flared so that it will not slip off, but that in the present case the handle was put on from the large side and wedged on to the small side which caused it to slip off the handle.

It was the duty...