Crawford v. Sawyer & Austin Lumber Company

• Decision Date: 12 July 1909
• Citation: 121 S.W. 286,91 Ark. 337
• Parties: CRAWFORD v. SAWYER & AUSTIN LUMBER COMPANY
• Court: Arkansas Supreme Court

121 S.W. 286

91 Ark. 337

CRAWFORD v. SAWYER & AUSTIN LUMBER COMPANY

Supreme Court of Arkansas

July 12, 1909

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge reversed.

Reversed and remanded for new trial.

W. F Coleman and Murphy, Coleman & Lewis, for appellant.

1. Under the doctrine laid down in the Triplett case, 54 Ark 289, since followed and approved by this court in many cases, and the definition of fellow servants in the Snellen case, 82 Ark. 337, to be "persons employed by the same master to accomplish one common object, and so related in their labor performed in the service of the master as ordinarily to be exposed to injuries caused by each other's negligence," it is clear that appellant was not a fellow servant with the fireman, and the injury was not "within the risk ordinarily incident to the service undertaken." There was a question, therefore, for the jury's determination. 58 Ark. 198.

2. But, if they were fellow servants, there is still a case of concurring negligence by the master and a fellow servant for which the master would be liable. Chicago Mill & Lumber Co. v. Cooper, 90 Ark. 326; 4 Thompson on Negligence § 813; 1 Labatt on M. & S. § 813; 106 U.S. 700; 203 U.S. 473; 21 S. E. (Va.) 347; 95 N.Y. 552; 67 Ark. 1; 88 Ark. 28.

Austin & Danaher, for appellee.

1. The burden was on plaintiff to show some negligence on the part of the defendant which caused or contributed to his injury. Such negligence cannot be surmised or presumed. 82 Ark. 372. The plaintiff and the fireman were fellow servants, and the "injury was within the risk ordinarily incident to the service undertaken." 54 Ark. 296; 85 Ill. 500; 46 L. R. A. 377; 19 Am. St. Rep. 617; 55 L. R. A. 908; 58 Am. Rep. 881; 31 L. R. A. 321.

2. His own contributory negligence in going upon the track where he was hurt, a safer way having been provided which he could have traveled, as is conclusively shown in the evidence, will preclude a recovery. 36 Ark. 377; 49 Ark. 257.

OPINION

BATTLE, J.

Thos. D. Crawford brought this action against Sawyer & Austin Lumber Company to recover damages for personal injuries sustained by him as a result of the negligence of the defendant. The substance of the contents of his complaint is correctly stated in the abstract of appellant as follows:

"The defendant is a corporation, owning and operating a saw mill plant at Pine Bluff, Arkansas. West of its principal saw mill, and separated from it by a large mill pond, the defendant operates a sash and door factory. Extending from the sash and door factory, and running in an easterly direction and curving around the northern boundary of the mill pond, was one of the railroad tracks of the Pine Bluff & Western Railway Company. This track passed in close proximity to the principal saw mill and also near the machine shop, the track passing just north of both. This track was generally used by the employees of the company in going from the sash and door factory to the principal saw mill, the machine shop and the office of the company. Plaintiff was the superintendent of the sash and door factory, and was earning a salary of $ 2,000 per year. On the morning of the 23d of October, 1905, he started from the door factory to the machine shop, and proceeded over the track mentioned. When opposite the saw mill, defendant negligently opened a valve to blow out the boilers, which so enveloped the plaintiff in steam and vapor as to prevent him from seeing in any direction, thereby confusing him and blinding him as to his surroundings and preventing him from getting off the track with safety, as the track at this point was on a high embankment with a ditch on both sides. The blowpipe was negligently constructed in that it directed the steam immediately across the track. While plaintiff was trying to get out of the steam, he was negligently struck by a flat car propelled by the defendant's engine, and knocked down upon the track, the wheels of the car so bruising and mutilating his left foot as to cause the loss of all of his toes on that foot and to render him a cripple for life. By reason of the enormous quantity of steam and vapor enveloping the plaintiff, he was prevented from seeing the train, and the operators of the train were prevented from seeing him. The damages were laid at the sum of $ 15,000."

Defendant answered and denied material allegations of the complaint, and alleged that plaintiff was guilty of contributory negligence.

After hearing all the evidence adduced by the parties, the court instructed the jury to return a verdict in favor of the defendant, which they did, and plaintiff appealed.

The only question for us to decide is, was the evidence adduced by the plaintiff legally sufficient to support a verdict in his favor? In deciding this question we should give the testimony in his favor its strongest probative force, and accept that view of it most favorable to him. Catlett v. Railway Co., 57 Ark. 461; Rodgers v. Choctaw, Oklahoma & Gulf Railroad Co., 76 Ark. 520, 89 S.W. 468; Wallis v. St. Louis, Iron Mountain & Southern Railway Co., 77 Ark. 556, 95 S.W. 446; Scott v. St. Louis, Iron Mountain & Southern Railway Co., 79 Ark. 137, 95 S.W. 490; Evans v. St. Louis, Iron Mountain & Southern Railway Co., 87 Ark. 628, 113 S.W. 642.

Pursuing this course, we find the facts in this case as follows:

"The Sawyer & Austin Lumber Company operates a large saw mill plant near the city of Pine Bluff. Some distance west of this plant and separated from it by a mill pond was a sash and door factory belonging to the same company, but operated as an entirely distinct and separate business, except as hereinafter stated. The employees of the door factory had nothing in common with the employees of the saw mill, and, so far as the record shows, the respective service of the two sets of employees never brought them in any kind of personal contact or relationship. The saw mill was in charge of one superintendent, and the door factory was in charge of another, and, while both superintendents were under a common master, there was no co-service between them, and neither had anything whatever to do with the employees under the other.

"According to the testimony of the defendant, the company had established a roadway and walk from the door factory around the southern end of the pond to the company's office which was located east of the saw mill....