Griffin v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 20 December 1915
• Docket Number: (No. 61.)
• Citation: 181 S.W. 278
• Parties: GRIFFIN v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

181 S.W. 278

GRIFFIN v. ST. LOUIS, I. M. & S. RY. CO.

(No. 61.)

Supreme Court of Arkansas.

December 20, 1915.

Appeal from Circuit Court, Independence County; Dene H. Coleman, Judge.

Action by W. N. Griffin against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

W. K. Ruddell, of Batesville, and Ira J. Matheny, of Hot Springs, for appellant. Troy Pace and W. G. Riddick, both of Little Rock, for appellee.

McCULLOCH, C. J.

Appellant sued the railway company to recover compensation for personal injuries received while he was working for appellee as a laborer in the bridge department. The issues were tried before a jury, and the court gave a peremptory instruction in favor of appellee. The question, therefore, which we have for consideration, is whether or not the evidence was sufficient to support a verdict in appellant's favor.

The injuries of appellant were sustained while he, together with his colaborers, were carrying a piece of timber to load it on a push car. The piece of timber was one of the stringers of a bridge, and after having taken it out of the bridge the laborers were engaged in loading it on a push car for the purpose of carrying it to another place. The particular piece they were handling at that time was about 28 feet long and weighed from 1,000 to 1,200 pounds. There were five men handling it, two at each end and the fifth one in the middle using a cant hook. They picked the timber up from the place it was lying, about 15 feet from the side of the track, and started up the dump with it; and as appellant reached the top he stepped on the edge of the gravel which constituted the ballast for the railroad, his foot turned and slipped on the gravel, and the weight of the piece of timber came on him with such force that it hurt him in the groin and injured his testicles.

The testimony of appellant tends to show that the great strain he was under, in assisting in carrying the heavy load, caused his foot to slide or turn when he stepped on the gravel, and also prevented him from sustaining himself against the additional force. It is charged that it was necessary for as many as seven or nine men to help in carrying a piece of timber of that size and weight, and that the employer was guilty of negligence in putting five men to work in handling it. The men were acting under the immediate direction of a foreman who was present and directed the men to pick up the piece of timber and carry it to the push car. Testimony was adduced tending to establish the fact that it was customary for a crew of seven or nine men to work together in handling timbers of that size and weight, and that such a load was too heavy for five men. We are of the opinion that the testimony was sufficient to warrant a submission to the jury of the question of negligence of the foreman in putting the insufficient number of men to work in handling that particular piece of timber.

It is insisted by counsel for appellee that under the undisputed testimony appellant must be deemed to have assumed the risk. We do not think, however, that it can be said as a matter of law that the risk was assumed merely because appellant, under the circumstances, proceeded with the work. He was acting under the immediate commands of the foreman and had the right to some extent to rely upon the former's superior knowledge. It was a question for the jury to determine whether...