Dickinson, Receiver Chicago, R. I. & Pac. Ry. Co. v. Brummett

• Decision Date: 04 March 1918
• Docket Number: 196
• Citation: 201 S.W. 812,133 Ark. 30
• Parties: DICKINSON, RECEIVER CHICAGO, R. I. & PAC. RY. CO. v. BRUMMETT
• Court: Arkansas Supreme Court

201 S.W. 812

133 Ark. 30

DICKINSON, RECEIVER CHICAGO, R. I. & PAC. RY. CO. v. BRUMMETT

No. 196

Supreme Court of Arkansas

March 4, 1918

Appeal from Prairie Circuit Court; Thos. C. Trimble, Judge affirmed.

Judgment affirmed.

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

1. The verdict is against the evidence. 79 Ark. 608; 123 Id. 428.

2. The verdict is excessive. 117 Ark. 47; 106 Id. 177.

Pace Seawel & Davis, for appellee.

1. The verdict is sustained by the evidence.

2. The verdict is not excessive. The damages awarded are indeed moderate. 95 Ark. 310.

STATEMENT OF FACTS.

The appellee brought this action against the appellant to recover damages for alleged personal injuries. He alleged that appellant was engaged in interstate commerce and that he was in appellant's employ; and at the time of the injury was himself engaged in interstate commerce. He alleged that he was employed in the capacity of car repairer, and that on the day of the injury he and other employees were directed by their foreman to place a door on a stock car; that he was directed by the foreman to use a pinch bar to assist in prizing the door which was being held in position by the other employees; that in obedience to the order he placed one end of the pinch bar on a door track underneath the door and supported the other end with his shoulder; that while he was prizing the lower end of it with a pinch bar the foreman without warning of any kind negligently struck the door with a heavy maul and the other members of the crew negligently without warning turned loose the door, throwing the weight of the heavy door upon him, thereby seriously and permanently injuring his back, spine and hip.

The appellant denied the allegations of the complaint as to negligence and set up the defense of contributory negligence.

The facts which the evidence tended to prove as detailed by the appellee and his witnesses are substantially as follows "The appellee while prizing at the door with a pinch bar trying to force the top of the door into a groove so as to get the bottom of the door onto a track upon which it was to run, had his back sprained."

Appellee in his testimony says: "We went over to help put the car door on and picked up the door with our hands and put it in the groove at the top, and tried to put it on the track at the bottom, but it lacked about an inch going on to the track. Mr. Hall (the foreman) told me to get a bar and prize the door up so it would go on. I picked up the bar and put one end of the bar on my left shoulder, and then raised up. Then Mr. Hall hit the door with a maul. When he hit the door with the maul I noticed the weight come down to me. I had my back to Mr. Hall, but as he hit the door I noticed John Melton turn the door loose. When the door went in place the bar fell off of my shoulder and I straightened up and walked back to the car where Mr. Melton and myself had been working, which was about a car and a half from the car where we had put in the door. We had taken off an end sill and I told Mr. Melton that a man that was strained like I was didn't have to work any more."

The door weighed 500 or 600 pounds. No warning was given by the foreman that he was going to strike the door. Appellee was in a stooping position with the bar resting on the track and the door resting on the end of the bar and the other end resting on his shoulder. Appellee could not hold the door with the pinch bar when the others turned it loose. Appellee had helped to put in dry box car doors before but had never helped to put in a door of this kind. There was nothing to support the door from the top. If appellee had known that the foreman was going to strike the door and that the others were going to turn loose he would have turned loose himself.

The ground sloped away from the track and one had to stand still further down hill so that the bar was in a slanting position, the end resting upon his shoulder being lower than the one underneath the door.

The testimony of two witnesses, who were employees and engaged in assisting appellee in placing the door, was to the effect that when Hall struck the door it moved down towards Brummett. They were exerting their strength to lift the door high enough to get it in the track; when they saw that Hall was going to strike the door they turned it loose, and there was nothing to hold the door except Brummett and his pinch bar. They turned it loose because they thought it would jar and jerk. They had been lifting as hard as they could. They could not push it in.

A door was exhibited to the jury and the witnesses demonstrated before the jury the attitude of the appellee and those who were lifting the door and assisting putting the same in place. The door they had for the purpose of making the demonstration was the same size but not as heavy as the original door. One of the witnesses stated that the original weighed about five or six hundred pounds.

After the door had been put in place appellee stated that his back was strained and did not think that he would do much more work at that time.

There was testimony on behalf of the appellant tending to prove that the door would weigh about three hundred pounds, that the door was tight and failed to go in; when the door failed to go in, the usual way was to force it in by tapping the same in place with a maul. When the door was in the groove at the top and one end was in the casing at the bottom it would not fall out even if no one was holding it. The crew that were called on to assist consisted of six men, when one or two to lift was sufficient. Nobody complained about being hurt there that evening. One of the witnesses for the appellant stated, "I helped make the door and we summoned enough men to put it up. We took hold of the door and lifted it up in the groove at the top. When we placed the shoe on the left side of the track. I was standing near the center of the door. We tried to put the door in but it was too tight and Brummett picked up the bar and tried to force it in. Mr. Hall hit it with a maul. Hall said, "Prize it up." Then he picked up a maul to strike it. Mr. Hall said, "Some one get a pinch bar and let us see if we can't drive it in." Nobody expressed any surprise at his hitting it with the maul. With the top of the door in the groove and the left end in the track, the door would stand there." The jury returned a verdict in favor of the appellee for $ 10,000. Judgment was rendered in his favor for that sum and it is sought by this appeal to reverse the judgment. Other facts stated in the opinion.

OPINION

WOOD, J., (after stating the facts).

Appellant contends that the judgment should be reversed upon two grounds:

First. That the evidence is insufficient to sustain the verdict. Learned counsel for appellant urge that the testimony demonstrates to a mathematical certainty that appellee could not have been injured in the manner and to the extent claimed by him, for the reason, they say, "that Hall was the only credible witness as to the weight of the door and he testified that it weighed about three hundred pounds." This, they say, would make the weight on the man's shoulder only sixty pounds. They argue, therefore, that the verdict is contrary to the physical facts. They arrive at this conclusion upon the calculation "that if one end of the bar, thirty inches long, is supported by a man's shoulder and the other end is resting upon a fixed object and a weight of 300 pounds is placed upon the bar with the center of the weight six inches from the end which is resting upon the fixed object, the weight upon the man's shoulder will be six-thirtieths of the total weight," or sixty pounds. Appellee testified "that the door was two inches thick and that it was back on the bar about six or eight inches from the point where the bar was...