Gilkey v. Louisiana & Arkansas Railway Company

• Decision Date: 15 April 1912
• Citation: 146 S.W. 497,103 Ark. 231
• Parties: GILKEY v. LOUISIANA & ARKANSAS RAILWAY COMPANY
• Court: Arkansas Supreme Court

146 S.W. 497

103 Ark. 231

GILKEY v. LOUISIANA & ARKANSAS RAILWAY COMPANY

Supreme Court of Arkansas

April 15, 1912

Appeal from Columbia Circuit Court; Jacob M. Carter, Judge reversed.

Judgment reversed, and case remanded.

C. W McKay, for appellant.

1. It was appellee's duty to exercise ordinary care to provide appellant a reasonably safe place to ride upon the hand car. 97 Ark. 187; Id. 350; Id. 138. Also to give him proper instructions and warning of dangers. 90 Ark. 473; Id. 407; 73 Ark. 49. The presumption is, in the absence of instruction and warning of the danger, that appellant did not realize and appreciate the danger, and the burden of proof was on appellee to show that he did realize and appreciate it. 1 Labatt on Master & Servant, § 291.

2. Gilkey's testimony shows that the jolt to the car resulting from the car operatives jerking or "snatching" the lever, threw him forward and caused his foot to be caught and injured. If true, their negligence was the proximate cause of the injury, and appellee would be liable. 100 Ark. 462; 93 Ark. 88.

There was a question of fact for the jury raised by the evidence, and the court erred in directing their verdict.

Henry Moore and Henry Moore, Jr., for appellee.

1. Notwithstanding appellant's denial that his common sense and experience had taught him that it was dangerous to let his feet hang down where they could get caught by the guard rail, the court very properly refused to submit to the jury whether he was negligent in doing so or to have them decide whether he knew it was dangerous to allow his feet to hang down so they could be thus caught. It is self-evident that the danger was open and well known to every person of ordinary sense and intelligence. 82 Ark. 539; 97 Ark. 187.

2. Even if the hands operating the car snatched on the lever and caused the jar or jolt, yet appellant could not recover, since in accepting employment as a section hand he assumed such risks as are usual and incident to the work. 56 Ark. 237; Id. 210; 68 Ark. 319.

OPINION

HART, J.

Charlie Gilkey, a boy seventeen years of age, by his next friend, brought this action against the Louisiana & Arkansas Railway Company to recover damages for injuries sustained by him while in the company's employment.

Charlie Gilkey detailed the manner in which he received his injuries, substantially as follows: "I have worked as section hand for the Louisiana & Arkansas Railway Company altogether for seven months. I first worked on the section three months and quit for three months. I commenced again and had been working for the company about four months at the time I was injured. Our section was several miles in length, and it was our custom to ride to and from our work on the hand car. I was working under John Williams, the section foreman. On the morning I received my injuries, I reported for work, and the section foreman told us to put the tools on the car and put the car on the track to go to our work. The section foreman took his seat on the left hand side of the car on the front end. He had a seat prepared for him. The other section hands, except myself, propelled the car. There was no room for me to assist them and the standing room between the levers was occupied. I sat down on the front end of the car on the right hand side. There was no room for me to stand up. No instructions or warning was given me about the danger of sitting on the front end of the car. I was hurt at Cornelius' spur, going north. I was sitting on the front end; didn't have any place to stand at, and he never gave me any instructions. We was going down hill at full speed, and the car give a sudden jerk, and my foot caught between the guard rail and the main rail and threw me off and the car ran over me." My left leg was broken above the knee, and I was otherwise bruised and injured.

CROSS EXAMINATION.

"Q. Wouldn't your own common sense teach you that if you let your feet hang down and get one of them caught between the guard rail it would be dangerous and jerk it off? A. No, sir; not then; since I got hurt, it would. I didn't have them hanging down in going over the hill; the jolt threw them down. I had ridden on the front end of the car a few times before, and the section foreman did not tell me to be careful. I knew how the guard rails were laid out, but never paid any particular attention to them. I did not appreciate that it was dangerous to ride sitting down on the front of the car until after I was injured."

Other testimony for the plaintiff tended to show that the car was going at about ten miles per hour when Gilkey was injured.

John Williams for the defendant testified: "Charlie Gilkey was sitting on the front end of the hand car with his feet hanging down at the time he was hurt. The car was going about six or seven miles an hour. This is not very fast for a hand car to run. The car did not give any sudden jerk when his foot hung between the guard rail. The car was in good order. The accident happened because Gilkey did not hold his feet up. I had cautioned all the section hands about the...