Chicago, Rock Island & Pacific Railway Co. v. Smith

• Decision Date: 07 April 1913
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. SMITH
• Court: Arkansas Supreme Court

156 S.W. 166

107 Ark. 512

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. SMITH

Supreme Court of Arkansas

April 7, 1913

Appeal from Dallas Circuit Court; H. W. Wells, Judge; affirmed.

STATEMENT BY THE COURT.

Harvey Smith was injured while in the service of the Chicago, Rock Island & Pacific Railway Company by being struck on the shin by an eight-pound sledge hammer in the hands of a car repairer whom he was assisting in the work of repairing a defective car. The hammer as alleged in the complaint had an imperfect striking surface and was defective for the use to which it was being put at the time the injury was received. Smith brought this suit against the railway company to recover damages for the injury.

The testimony adduced on behalf of the plaintiff is substantially as follows:

J. J Dozier testified: I am a car repairer and at the time the plaintiff Smith received the injury complained of and for some time prior thereto was engaged in the service of the defendant railway company at El Dorado, Arkansas. The injury was received by the plaintiff at El Dorado on the 10th day of July, 1911. Some time before that the shed and tool house of the defendant at El Dorado was burned and the handle was burned out of the hammer in question. A new handle was placed in it. The striking face of the hammer was imperfect. It is not straight but is drawn sideways. When hammers are in this condition they do not strike true. I showed this hammer to the foreman before the accident, and he told me that he would get some new hammers in a short time. The hammer in question is an eight-pound hammer and the handle is about twenty-four inches long. At the time the plaintiff was injured there was a scarcity of hammers of this kind in the repair yard, and it was a common custom for me to loan my hammer to another workman in the yard. This was done by direction of the foreman. On the day plaintiff was injured I left the hammer in question with some other tools between the rails on track No. 3 in the yards at El Dorado. It was the only hammer there with the tools. If a turnbuckle in a freight car is so tight that you can not prize it loose, the men sometimes resort to a hammer like this to jar it loose. In those cases, we take a lever, a pinch bar or line bar or something of that sort or a piece of wood small enough, and one man prizes it and the other man goes on the opposite side and strikes, following the turn with a hammer or maul and that moves the buckle in that direction. The emergency which makes that necessity is that the threads get rusty in the buckle or are not in a straight line, which makes the buckle hard to turn. By striking the top side that breaks the rust on the rod. The two men, the one prizing down and the other striking, would be facing each other under the car. The man striking with the hammer, strikes in the direction of the man with the prize.

R. S Blackman testified: I was a car repairer in the service of the defendant railway company at the time the plaintiff was injured. At the time he was hurt we were working on a car engaged in taking the slack out where it had gone down. We had jacked up the car and were under it trying to turn the turnbuckle so as to tighten up the truss rods. There were four turnbuckles under this car and we had adjusted two of them before the plaintiff was hurt. The truss rods are of iron and are an inch or an inch and three-quarters in diameter and extend from each end under the center. The turnbuckles are in the middle and are put there for the purpose of tightening the truss rods and keeping them properly aligned. There are screws upon each end of the turnbuckle and you tighten or loosen them according to the way you turn it. I had taken a small hammer and mauled the turnbuckle as heavy as I could pound it but could not loosen it. I did not have a sledge hammer. The foreman had told me that some would be in in a few days, and in the meantime directed me to borrow one from the nearest workman when I needed one. I directed the plaintiff, my helper, to go and get me a sledge hammer. He went out about two car lengths ahead and got the hammer in question and brought it under the car where we were working. He pitched the hammer over to me and I caught it. I directed him to take a piece of timber and put it in the turnbuckle and prize towards himself. I took the hammer and commenced pounding on the turnbuckle. I was striking towards the plaintiff. After I had struck three or four licks, the hammer glanced and struck plaintiff on the lower limb between the knee and the ankle. The plaintiff was in a squatted position and fell back. I asked him if he was hurt and he said yes. The hammer did not leave my hand when it struck him but struck him pretty hard; we were doing the work in the usual manner and I was just as careful as I could be in striking the turnbuckle. I think the slipping of the hammer was caused by the defective condition of its striking face. I examined the hammer after the plaintiff was struck and saw that the face of it was all knocked down and that its striking surface was defective. I did not notice this until after the accident occurred.

Harvey Smith, the plaintiff, testified: I am twenty-eight years of age and my residence is at El Dorado, Arkansas. I have lived there four years. I had been working for the defendant company a little more than one year before I was injured. This was the first railroad work I had ever done. I worked as fireman on the road some and in the car repair department some. I was helper to a car repairer. Prior to the injury I had been strong and well and had not been sick to amount to anything for ten years. I have no means of support except manual labor. I have not been able to earn anything since I received this injury and have been in bed most of the time. (The trial was had about eleven months after the injury was received.) I suffered great pain after I received the injury. I remained in the hospital three weeks and then by the permission of the physician came home. I stayed at home a month or probably six weeks and then went back to the hospital and remained there about three weeks. The railroad surgeon split my leg and went on the inside of the bone. About two weeks after I was hurt my leg swelled up and became inflamed. Doctor Wharton opened up my leg twice. The first time I did not take any chloroform. The incision was about an inch and three-quarters or two inches long. When I went back to the hospital the second time they operated on my leg on the left side of the bone. They gave me chloroform. My leg pains me nearly all the time. My knee is swelled up, and while the swelling has gone down some, it pains me to walk on my leg and walking makes it swell.

The plaintiff detailed the manner in which he received his injury practically the same as the witness Blackman. He said they had been instructed to hurry up the job at which they were working when he was injured.

Dr. R A. Hilton testified: I am a physician and surgeon. I was called to see the plaintiff about the first of November 1911, and have been treating his leg ever since that time. When I first saw him his temperature was over one hundred and five. His leg was very much swollen and in an inflamed condition; there was an incision in the leg which had been made by the railroad surgeon. I opened the leg thoroughly and went under the muscles with my finger. There were sacks of pus all through there and under the muscles. I broke them down with my finger. I took a scrape and raked out all the dead bone. There was some pus in the bone. The plaintiff was delirious for a great part of the time at first and I thought it would be necessary to amputate his limb at once. After forty-eight hours he got better and later on got up so he could walk around. The periosteum is the covering of the bone and assists in nutrition. The periosteum of the large bone in plaintiff's leg is very much involved and I believe that the small bone is, too, on account of the fact that there has been so much suppuration of the parts around them. I can't understand how it would be possible for it to be otherwise when you consider the condition of the parts around and about it. The witness was asked, "From your knowledge of this wound and in the treatment of it, what do you think with reference to the involvement of the knee?" and answered, "I think it is very likely that it is involved; it is to the extent that to allow it to go on, is to take chances of losing the limb."

We quote from the testimony of the witness as follows:

Q. From your treatment of this wound, and your observation of it, Doctor Hilton, I will ask you to state what are the probabilities of a cure of his leg, if any, and in what time?

A. Doctor Runyan had a shot at it and didn't cure it, and so did Doctor Wharton and never and I didn't cure it. Taking it for granted that the bone is involved, it would take about ninety days, and he would have a crippled leg forever, and it would be about the same in the event of amputation.

Q. What do you think are the chances of amputation of this leg in the condition it is now?

A. I would be governed largely by the condition after looking into the bone. I believe there is some involvement of the joint, and, if I found that, I would amputate it.

I think that five hundred dollars would be a reasonable fee for the services I have already performed and there is absolutely necessity for further treatment. I think the cost of medicine can not be less than one hundred dollars.

Doctor Wharton testified that the condition of the plaintiff is bad. That the involvement to the bone, if it is extensive enough through and through, would be sufficient to cause him to lose his leg. That the dead bone would have to be taken out, and,...