Gurdon & Fort Smith Railway Co. v. Calhoun

• Decision Date: 09 March 1908
• Citation: 109 S.W. 1017,86 Ark. 76
• Parties: GURDON & FORT SMITH RAILWAY COMPANY v. CALHOUN
• Court: Arkansas Supreme Court

109 S.W. 1017

86 Ark. 76

GURDON & FORT SMITH RAILWAY COMPANY v. CALHOUN

Supreme Court of Arkansas

March 9, 1908

Appeal from Pike Circuit Court; James S. Steel, Judge; reversed in part.

STATEMENT BY THE COURT.

The Dalhoff Construction Company, an independent contractor, was building a bridge over the Antoine River, in Pike County, for the Gurdon & Ft. Smith Railway Company. The Construction Company was doing the grading and bridge work, and the Gurdon & Fort Smith Railway Company was doing the track-laying work such as placing the ties on the dump and laying the steel on the ties. The Railway Company had a construction train on the road for that purpose. Appellee was directed by the foreman of the Construction Company to saw off the ends of "sway brace" on the bridge. The bridge was one hundred and fifty feet long. The construction train was at the end of the bridge about one hundred feet from where appellee was at work, cutting the "sway braces." It was laying the steel at the time at the request of the Dalhoff Construction Company, in order to keep their carpenters at work. The Construction Company desired the work of laying the steel "rushed" in order that it might get its bridge material through over the track, and hence made the request of the Railway Company to "rush" that work. The Railway Company was laying the steel, working toward appellee. The appellee described the manner in which he was injured as follows: "The train must have been something like 100 feet from me, coming towards me; when I went to work, I walked down the track and stepped down on to the cap which was only about 24 inches below. I had cut two sway-braces when they closed in on me. I was standing on a plank about 14 inches wide. I saw the train coming, and knew what it was doing. At the time the tie jack fell I was standing still. I had finished the sawing, and didn't have anything to do until the train got out of the way. The train would move the length of a rail or half the length of a rail sometimes. I could have climbed over the train, if I had wanted to take the chances, which I wouldn't do. The rails were 28 or 30 feet long. The train naturally moved very slow. I had seen the work train at work several days before this. I was stooping over at the time I was struck, looking down the train to see if anything loose was hanging down, as sometimes car stakes drop through. These were ordinary flat cars, and I knew how they were worked. The top of the car would have been level with my head if I had been standing straight. The tie jack fell and knocked me off on the ground." The "tie jack," says the witness "was made some-think like a carpenter's horse, about seven feet long. They load ties on this, and there is a trigger, and they knock that trigger, and it lowers the ties and lets them down on the tracks."

Appellee sued appellants, alleging that they were jointly engaged in the construction of a line of railroad, etc.; that he was in the employ of the Dalhoff Construction Company, "and while doing work upon the bridge a construction train passed over said bridge, on which train was loaded a tie jack made of heavy pieces of timber, and which weighed about 300 pounds; that said tie-jack was negligently placed upon said car near the edge, and that in passing over the bridge without fault of the plaintiff, the same fell from said car striking the plaintiff," and causing the injuries of which he complains, and which he specifically described in his complaint. "That said injury was caused by the negligence of the defendants in failing to properly load said car, and in negligently and carelessly running the same over the said bridge, negligently permitting said tie-jack to fall from said car, and failing to warn the plaintiff of the danger therefrom."

The Dalhoff Construction Company answered that it was jointly engaged with the Gurdon & Fort Smith Railway Company in the construction of the railroad; admitted that plaintiff was in its employ, and assisting in the building of the bridge over Antoine River; denied that it was responsible for the injury of plaintiff; alleged that the Construction Company had nothing to do with the management or operation of the construction train that injured plaintiff, that it had nothing to do with the placing of the "tie jack" on the train, and alleged that the injury was without the fault or negligence of the Construction Company in any way whatever.

The appellant Railway Company answered, denying all the material allegation of the complaint specifically, and setting up contributory negligence of plaintiff, by way of affirmative defense.

The cause was sent to the jury upon the facts substantially as above stated and upon instructions. The verdict was for $ 5,000 against the defendants jointly. Judgment was entered accordingly. Motions for new trial were made by each defendant, and overruled.

This appeal was prosecuted by each of the appellants.

Other facts stated in the opinion.

Judgment affirmed.

Tom M. Mehaffy and J. E. Williams, for appellant Railway Company.

1. Appellee was an employee of the construction company, an independent contractor. If he was injured by reason of any act or failure of that company, appellant railway company is not liable. 53 Ark. 503; 77 Ark. 551.

2. There is no presumption of negligence against the railway company in this case. It could owe no greater duty to appellee than it would owe to one of its own employees, and, indeed, like the proprietor of premises on which a party has gone by invitation, the extent of its duty would seem to be to exercise due care to guard him against the consequences of hidden or unusual dangers on the premises. Thompson on Neg. § 680; White's Supplement, Id. 979; 74 N.E. 919; 79 Ark. 437. This case does not fall within the rule res ipsa loquitur. 73 S.W. 279; 43 S.E. 443; 40 F. 566; 111 F. 58.

3. This case does not fall within the statutory presumption of injuries caused by the running of trains, and no presumption of negligence arises from the receipt of the injury. 69 Ark. 380.

H. F. Auten, for appellant Construction Company.

The court should have granted appellant Construction Company's request for a peremptory instruction in its favor. If any negligence was shown, it was that of the Railway Company, and there is no contention nor proof that this appellant was either interested in or had any control of the operation of the train. The court further erred in refusing the second instruction requested by said appellant. 63 Ark. 183.

McRae & Tompkins, for appellee.

1. Appellant Construction Company is liable. The servant is not bound to make examination for defects but may rely upon the judgment and discretion of the master. In this case the foreman was chargeable with the duty of seeing that he was not subjected to unnecessary dangers. 48 Ark. 347; 77 Ark. 377; Id. 458; 56 Ark. 206-11; 104 Mo. 114; 55 Am. Rep. 169; 48 L. R. A. 758, note 5. The train being there at the Construction Company's instance, it is liable for failure to use reasonable care to prevent the tie-jack from falling; but if it be held that this duty did not devolve upon it, then it is liable for failure to make timely discovery and to warn appellee of the danger. 67 Ark. 295; 110 Mass. 241; 100 U.S. 213.

2. Appellee was not a trespasser, but rightfully on the bridge, and appellant Railway Company owed him the same duty it owed to its own servants or to the public. Did this appellant use ordinary care? The presumption of negligence arises from the injury, and the fact that the tie-jack fell is conclusive proof of its negligence. The doctrine res ipsa loquitur applies. 63 Ark. 636; 134 N.Y. 418; 77 Ia. 607; 41 Neb. 1; 75 Ark. 479; 57 Ark. 418. And the burden was upon defendant to show that it was not negligent. 57 Ark. 429; 54 Ark. 209; 2 Labatt, Master and Servant, § 834.

OPINION

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