Choctaw, O. & G. R. Co. v. Jones

• Decision Date: 06 January 1906
• Citation: 92 S.W. 244
• Parties: CHOCTAW, O. & G. R. CO. v. JONES.
• Court: Arkansas Supreme Court

92 S.W. 244

CHOCTAW, O. & G. R. CO. v. JONES.

Supreme Court of Arkansas.

January 6, 1906.

Appeal from Circuit Court, Saline County; Alex. M. Duffie, Judge.

Action by Ebenezer M. Jones against the Choctaw, Oklahoma & Gulf Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

On the 3d of May, 1903, Ebenezer Jones was working for the Choctaw, Oklahoma & Gulf Railway as a member of a bridge gang under a foreman named Collier. On that day Collier and his gang was ordered to assist Tillman, the foreman of another gang, in the erection of a rock crusher on the line of the railway. The wooden structure on which the rock crusher rested was built of heavy sawed timbers. It was located against the side of a steep hill. The top of this wooden structure next to the hill was about even with the hill. On the opposite front side it was 20 feet high. To lift the heavy iron parts of the rock crusher proper and place them in position they used what was called a "traveler" with a crane attachment operated by a steam engine. In placing the top of the crusher in position it became necessary to also use what the witnesses called a "bent." This "bent" consisted of two upright pieces and a cross-piece of heavy timbers, nailed together. These two upright pieces or legs of the bent, upon which the cross-piece rested, were nailed to the top of the wooden frame work on which the crusher rested, and were further held in an upright position by two braces, one on each leg; one end of the brace being nailed to the wooden structure on which the bent rested and the other to a leg of the bent. Jones assisted two or three other men in making and putting up this "bent," working under the direction of the foreman, Tillman, who had charge and superintendence of the work. After the "bent" had served its purpose Tillman ordered the workman to throw it down. In order to do so it was necessary to knock the braces loose and to draw the nails by which the legs of the bent were fastened to the wooden structure upon which it rested. Jones knocked the end of the brace on his side loose from the structure. He then commenced to draw the nails which fastened the leg. Collier, the other foreman, suggested that a rope be used to lower the bent gradually; but Tillman, who had charge of the work, said that it was unnecessary, and ordered the workmen to push the "bent" down. This was done just about the time Jones finished drawing the nails from the leg of the bent on his side. As the bent was pushed over towards the hill, the upper part of the leg of the bent near which Jones had been working struck the end of a bolt projecting from a part of the traveler. As the other side of the bent continued to fall, it caused the end of the leg upon which Jones had been working to kick up and back, and it struck Jones and knocked him off of the structure. He fell upon a car loaded with rock ballast, and from it rolled to the ground below, a distance of 20 feet in all. His left arm was crushed so badly that it was necessary to amputate it just below the elbow. His right arm was crushed at the wrist, and he suffered other injuries. He brought an action against the company to recover damages, alleging that the foreman, Tillman, was guilty of negligence in ordering plaintiff and the other workmen to throw the bent down without the use of a rope, and also because he ordered it thrown down without removing both ends of the brace on the side next to plaintiff. The defendant answered, and denied most of the material allegations of the complaint, and also alleged that the injuries received by plaintiff were received as a result of his own carelessness and negligence, or the carelessness and negligence of his fellow servants, and without the fault of the defendant, and that it was a risk assumed by plaintiff.

On the trial the court, among others, gave the following instruction: "(1) The court instructs the jury that a person engaged in the services of a railroad company as a bridge carpenter assumes all the risk ordinarily incident to the business; but he does not assume the risk of the negligence of the master himself, or of any one to whom the master may see fit to entrust his superintending authority." The defendant saved its exceptions to the giving of such instruction, and requested the court to modify it by adding the following words: "Unless the servant knew of such negligence, or by the use of ordinary care should have known of such negligence, and continued in the employ of the master without objection." The court refused to make such modification, to which the defendant excepted. The court gave quite a number of instructions at the request of the defendant, covering the doctrine of contributory negligence and assumed risks, but refused to give the following, to wit: "(5) If the plaintiff was a man of ordinary intelligence and understanding, and of sufficient experience to enable him to see and understand the dangers connected with the work about which he was employed in the manner in which it was conducted, then he assumed the risks of such dangers, and cannot recover for an injury caused thereby. (6) The plaintiff alleges that the defendant was negligent in failing to use a rope in throwing down said bent, and also in failing to have a brace removed from said bent before directing it to be thrown down. If you find from the testimony that plaintiff knew, or by the exercise of ordinary care and observation on his part could have known, that a rope was not to be used and that said brace had not been removed, and continued at his work, then he assumed the risks occasioned thereby and cannot recover in this case." Defendant excepted to the refusal to give the above instructions. The jury returned a verdict in favor of plaintiff for the sum of $4,000, and judgment was rendered for that sum. Defendant appealed.

E. B. Peirce and Thos. S. Buzbee, for appellant. N. P. Richmond and Wood & Henderson, for appellee.

RIDDICK, J. (after stating the facts).

This is an appeal by a railroad company from a judgment against it for damages for an injury to one of its employés while he was acting under the orders of a foreman in charge of the work upon which plaintiff was engaged at the time of his injury. The plaintiff and three or four other workmen were on the top of a wooden structure erected as a support for an iron rock crusher. The heavy iron part of the rock crusher was lifted into position by means of a "traveler" with a crane attached, worked by a steam engine. In placing the top of the rock crusher in position the workmen had also to use a "bent." This "bent" consisted of two upright pieces and a cross-piece some 10 or 15 feet long, connecting these two uprights, all of heavy timbers securely nailed and fastened together. The bottom of these two uprights or legs of the bent were fastened to the top of the wooden structure, on which the rock crusher rested. After the bent had served its purpose the foreman ordered it removed. When this order was given some one suggested that a rope be used, so that it could be lowered gradually. But the foreman said that it was unnecessary to use a rope, and ordered the bent to be pushed over and thrown down. As it was pushed over the top of the upright or leg of the bent next to where the plaintiff was at work caught on a bolt projecting from the "traveler." As the other side of the bent had nothing to stop or control it, it was pushed or fell forward; the side next to plaintiff catching on the projecting bolt caused the bottom of the leg on that side to kick or fly back. It struck plaintiff, knocked him to the ground, and caused him serious injury, on account of which he recovered judgment for damages, and the main question is whether the facts support the judgment.

The liability of the master for injuries to servants rests primarily on the broad principle of law that where there is fault there is liability, but where there is no fault there is no liability. 1 Bevens on Negligence, 734. In this case we may say that, as the foreman having charge of the work for the defendant stood in its place as its representative, if he by negligence while acting as foreman caused the injury, the plaintiff can recover compensation therefor from the defendant, unless the plaintiff was guilty of contributory negligence, or unless the injury resulted from a risk assumed by plaintiff. The defendant not only denies that it was guilty of negligence, but it set up both contributory negligence and assumption of the risk by plaintiff as defenses to the action in this case. There is, of course, a distinction between the defense of assumed risk and that of contributory negligence. The defense of contributory negligence rests on some fault or omission of duty on the part of the plaintiff, and is maintainable when, though the defendant has been guilty of negligence, yet the direct or proximate cause of the injury is the negligence of the plaintiff, but for which the injury would not have happened. It applies when the plaintiff is asking damages for an injury which would not have happened but for his own carelessness. On the other hand, the defense of assumed risk is said to rest on contract, which is generally implied from the circumstances of the case; it being a term which the law imports into the contract, when nothing is said to the contrary, that the servant will assume the ordinary risks of the service for which he is paid. The defense of assumed risk comes within the principle expressed by the maxim "Volenti non fit injuria." This defense does not impliedly admit negligence on the part of the defendant and defeat the right of action therefor, as the defense of contributory negligence does; for, where the injury was the result of a risk assumed by the servant, no right of action arises in his favor at all, as the master owes no legal duty to the servant to protect him against dangers the risk of which he assumed as a part of his...