Griffin v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 20 December 1915
• Docket Number: 61
• Parties: GRIFFIN v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

181 S.W. 278

121 Ark. 433

GRIFFIN v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

No. 61

Supreme Court of Arkansas

December 20, 1915

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

Reversed and remanded.

W. K Ruddell, V. G. Richardson and Ira J. Matheny, for appellant.

1. Appellant did not assume the risk unless the danger was so obvious as to make a reasonable man refuse to do the work for the reason there was a direct command and the foreman was present showing how the work should be done. 113 Ark. 359. He had the right to rely on the superior knowledge of the foreman, * * * unless he knew and appreciated the danger to which he was exposed. 95 Ark. 291; 77 Id. 458; 77 Id. 367. The question of assumed risk should have been left to the jury. 65 Mo. 514; 12 Col. 20; 191 Ill. 439; 19 Hun (N. Y.) 596; 79 Ark. 53; 88 Id. 548.

Railroads must use the same care for their men that an ordinary man would for his own safety (81 Ark. 591), and if this was not the safest practical way to handle the timber then the company was guilty of negligence. 77 Am. St. Rep. 17, 24. As to whether this was the safest practical way was for the jury. 117 Mass. 407; 121 Id. 508; 90 Ark. 145.

When the company changed its manner of loading rendering it more dangerous, it was its duty to notify the plaintiff, and if it did not, and he did not know and appreciate the danger, the change increasing the hazard was the proximate cause and the company was liable. 103 Ark. 618. In the absence of knowledge there is no assumed risk. 77 Ark. 367; Ib. 458; 82 Id. 11; 86 Id. 507.

Whether a continuance of work is an acceptance of risk or not is for a jury. Beven on Negl. (3 ed.) 1908, p. 620; 126 C. C. A. 632. See also, 103 Ark. 618; 110 Am. St. Rep. 23 and note; 73 N.Y. 38; 67 Am. Dec. 312, 325; 137 Am. St. Rep. 904. Railroad companies must furnish sufficient men to do the work in safety, and if they fail, this is negligence and assumption of risk is no defense. 137 Am. St. Rep. 904; 63 Wash. 430. It is the duty of the servant to obey orders, and if the danger is not obvious or apparent, he is not guilty of contributory negligence. 56 Ark. 206. As to whether plaintiff was guilty of contributory negligence was a question for the jury. 67 Am. Dec. 312; 20 Ohio 415; 3 Ohio St. 201; 65 Ark. 138; 79 Id. 53; 229 U.S. 114.

The burden was on the railroad company to prove contributory negligence. 67 Ark. 531; 81 Id. 187. Where there is any legal evidence it is error to direct a verdict. 73 Ark. 561; 76 Id. 520.

2. The release was not binding. 87 Ark. 614.

Troy Pace and W. G. Riddick, for appellee.

1. Plaintiff assumed the risk and the court properly directed a verdict. 88 Ark. 548; 104 Id. 489; 95 Id. 291; 171 S.W. 496; 119 Ark. 477; 101 Ark. 197.

This case was tried under the Federal statute (229 U.S. 146), and the defense of assumed risk was available. 171 S.W. 496.

2. Defendant pleaded a release in settlement and plaintiff filed no reply. Plaintiffs evidence as to the statements of the physician was not admissible unless the release was obtained by fraud. Fraud must be alleged and proven. 20 Cyc. 104.

OPINION

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 appellee's favor.

The injuries of appellant were sustained while he, together with his co-laborers, 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 twenty-eight 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 where it was lying, about fifteen 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 or not appellant appreciated the danger of attempting to handle the piece of timber with an insufficient force of men.

Counsel insist that the recent case of St. Louis, I. M. & S. Ry Co. v. Middletown, 116 Ark. 284, 171 S.W. 869, supports their contention that this is a case of assumed risk, but we do not think that that case is analogous to the present one. There the servant was put to work at a machine to do the work in his own way, and to call for help when needed. He was not furnished help, but we said that under those circumstances he was not compelled to do the work until help was furnished, and that, therefore, he assumed the risk...