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

• Decision Date: 06 February 1911
• Citation: 134 S.W. 636,97 Ark. 486
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. GRUBBS
• Court: Arkansas Supreme Court

134 S.W. 636

97 Ark. 486

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. GRUBBS

Supreme Court of Arkansas

February 6, 1911

Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; reversed.

Judgment reversed and case dismissed.

Thomas S. Buzbee and John T. Hicks, for appellant.

Negligence in respect to loading the ties might be conceded, yet that would avail appellee nothing, since the loading of the ties was not the proximate cause of the accident. After they became disarranged en route, it was appellant's duty to have them placed in proper order. This was one of the purposes for which appellee was employed. In one sense it was his duty to make the place safe, and appellant could only have it made safe through the instrumentality of appellee or some other workman, and he assumed the hazards of his employment. 76 Ark. 69; 82 Ark. 534; 85 Ark. 600; 89 Ark. 50; 90 Ark. 387. See also 84 F. 84; 34 S.W. 362.

Carmichael Brooks & Powers, for appellee.

The question of negligence is a mixed one of law and fact, in the determination of which are to be considered whether an act has been done or omitted and whether the doing or omission was a breach of legal duty. 35 Ark. 602. Appellant's request for a peremptory instruction was therefore properly refused. On the question of fact, the jury having been properly instructed, their verdict will not be disturbed even if it should appear that it is against the preponderance of the evidence. On the contrary, in testing the sufficiency of the evidence, the court will give to the testimony its strongest probative force in favor of the verdict. 48 Ark 494; 67 Ark. 399; 74 Ark. 478; 76 Ark. 115; 73 Ark. 377; 76 Ark. 326; 70 Ark. 512; 64 Ark. 238.

OPINION

FRAUENTHAL, J.

This was an action instituted by C. W. Grubbs, the plaintiff below, to recover damages for a personal injury which he sustained while in defendant's employment, and which he alleged was caused by defendant's negligence. The defendant denied the allegations of negligence set out in the complaint, and pleaded as a bar to a recovery by plaintiff his alleged contributory negligence and his assumption of the risk of the injury. The jury returned a verdict in favor of the plaintiff, and from the judgment rendered thereon the defendant has appealed to this court.

Upon the trial of the case the defendant asked for a peremptory instruction in its favor; and now contends that under the uncontroverted testimony in the case the injury which the plaintiff received was due to a risk which was ordinarily incident to the employment in which he was engaged, and which therefore he assumed; and also that plaintiff himself was guilty of negligence which contributed to cause the injury. In determining whether or not there was any evidence adduced upon the trial of the case that was legally sufficient to warrant the verdict, this court will consider the testimony in its aspect most favorable to plaintiff and make every legitimate inference in his favor that is deducible therefrom. Viewed in this manner, the case is substantially this: The plaintiff was employed by the defendant as a section hand, and had been engaged in that service for about 18 months prior to the time he received the injury complained of. Two cars of creosoted ties had been placed upon the side track at the town of Lonoke. These ties were loaded on flat cars, and had become disarranged while being transported. They were placed upon the side track for the purpose of having them rearranged or straightened out, and it was one of the duties of the section hands to do this. The foreman of the section crew directed a number of his hands, amongst whom was plaintiff, to straighten out these ties upon the cars. The ties were loaded upon the cars to a height of about 12 or 14 feet from the ground, and they had become so disarranged that their ends protruded over the cars. The men first attempted to rearrange the ties by the use of a scantling while standing on the ground; but, this method proving unsuccessful, the foreman directed the men to go upon the ties in order to straighten them out. Four of the men got upon the ties safely. The plaintiff went to the end of the flat car and, climbing upon the drawhead of the car, caught hold of a protruding cross tie with his hand and attempted to pull himself up. The tie slipped, and the plaintiff, loosening his hold, fell to the ground, and was painfully and severely injured. The plaintiff had worked with ties which had been treated with creosote and knew that they were made slick by reason of this treatment; and the section crew to which he belonged had handled a great number of creosoted ties prior to the time of this injury and had straightened the ties on probably one or two cars.

The foreman did not direct the section hands, and did not direct the plaintiff, as to the manner in which they should get upon the ties, nor did he warn them of any danger in so doing. He left the manner of mounting the cars to their own discretion, and did not see or know of plaintiff's attempt to get on the car until after the injury.

In accepting and continuing in the employment in which he is engaged a servant assumes the ordinary and usual risks and perils that are incident thereto. He assumes all the obvious risks of the work in which he is engaged and also the risks which he knows to exist as well as those which by the exercise of reasonable care he may know to exist. By the contract of service he agrees to bear the risk of all such dangers, and he therefore cannot recover for the injuries resulting therefrom. As is said in the case of Fordyce v. Stafford, 57 Ark. 503, 22 S.W. 161: "The employee assumes all risks naturally and reasonably incident to the service in which he engages, where the hazards of the service are obvious and within the apprehension of a person of his experience and understanding." St. Louis, I. M. & S. Ry. Co. v. Touhey, 67 Ark. 209, 54 S.W. 577; Archer-Foster Construction Co. v. Vaughn, 79 Ark. 20, 94 S.W. 717; Choctaw, O. & G. Ry. Co. v. Thompson, 82 Ark. 11, 100 S.W. 83; Graham v. Thrall, 95 Ark. 560, 129 S.W. 532; 1 Labatt on Master & Servant, § 259.

In the case at bar the plaintiff knew that the effect of the treatment of creosote upon cross ties was to make them slick and therefore liable to slip. The ties had on this account become disarranged upon the cars, and it was for this reason that plaintiff was directed to do the work of straightening them out. Their condition was patent to him, and the manner in which they were disarranged upon the car was also patent. It was obvious, therefore, that these ties were liable to slip whenever any force or weight was applied to them. The risk of injury which might result by reason of the ties slipping or...