Hobart-Lee Tie Company v. Keck

• Decision Date: 25 January 1909
• Citation: 116 S.W. 183,89 Ark. 122
• Parties: HOBART-LEE TIE COMPANY v. KECK
• Court: Arkansas Supreme Court

116 S.W. 183

89 Ark. 122

HOBART-LEE TIE COMPANY v. KECK

Supreme Court of Arkansas

January 25, 1909

Appeal from Madison Circuit Court; J. S. Maples, Judge; affirmed.

STATEMENT BY THE COURT.

This action was commenced in the Madison Circuit Court by David N Keck against the Hobart-Lee Tie Company to recover damages for personal injuries sustained by him while unloading ties in said company's yard.

The defendant interposed a general demurrer to the complaint, and also answered, denying all the material allegations thereof.

David N. Keck, detailed the circumstances connected with the injury as follows:

"Hollie Barber was tie inspector, and had charge of the yard of the Hobart-Lee Tie Company at Pettigrew Arkansas, in 1907. On the 21st day of October of that year I took a load of ties to Pettigrew. When I got to the yard of the company, I saw that ties had been piled over next to the street, and that there was a driveway between the main piles where people had been unloading and the piles next to the street. When I got to the place where this driveway divided, I stopped, and waited for Hollie Barber to come. In a short time he came up and asked me what I had. I told him, and he directed me to drive on down to this pile. I drove down as directed and stopped. He followed and took the dimensions of the ties. After doing this he stepped around the mules somewhere, and I began to unload. I took one of the ties in my arms, had one end on the pile and was trying to get the other end over on the pile, when the pile tumbled down and fell on my leg. My leg was broken in two places, and was put in a straight box and remained there for twenty-five days. I had to lie on my back with my leg perfectly straight. My leg was very painful, and my back and hips became very sore."

Hollie Barber, for the defendant, testified substantially as follows:

In October, 1907, I had charge of the tie yard of the defendant company at Pettigrew, Ark. On the 21st day of the month, I went in the yard and found Mr. David N. Keck there with a wagon load of ties. I told him that he had better go on down further and unload. I do not know whether or not he heard me. He never paid any attention to me. I took the lengths of the ties, and when I turned around I saw the pile was going to fall. I jumped back and turned from Keck. When I again looked around, Keck was holding his leg and some two or three ties had fallen on it.

Keck denied that Barber directed him to unload anywhere other than where he did unload.

Dr Walter Acree testified: "I am a regular practicing physician. I saw Keck for the first time when I dressed his leg. I found upon examination that the lower third of the fibula, that is the outside bone of the right leg, was fractured transversely and longitudinally. The bone was fractured in the lower third, was fractured crosswise, and it was broken off and down into the joint and split up. On the other side, the bone which is known as the fibula was fractured transversely right in the joint and also lengthwise. There was a dent in the bone that one could put one's finger in. I never visited Keck again, but turned the case over to Dr. Boen. In my opinion the injury is permanent. It stands nine chances to one that anchylosis will follow."

During the trial, at the request of the defendant, Drs. Youngblood and Knight made an examination of the injured leg of Keck and both testified that in their opinion the leg had not been fractured, and that the injury was not permanent.

There was a jury trial and a verdict for the plaintiff in the sum of one thousand dollars.

The counsel for defendant filed his motion for a new trial, and in support of the sixth and seventh grounds thereof filed the following affidavit of himself:

"That the complaint of the plaintiff did not disclose any allegation as to permanency of the injury alleged to have been suffered by the plaintiff, but merely stated that some of the ties fell upon his [plaintiff's] leg, right leg, and broke it. That both bones of plaintiff's right leg were broken; and alleged confinement, bodily pain and 'considerable expense' for medical attendance. That said complaint shows file on the fifteenth day of February, 1908, and that defendant was served with notice just the statutory time of ten days required. That defendant, having no information to the contrary, supposed that the proof would be confined to the allegation of the complaint, and had no means of knowing that the character of the injury sustained by the plaintiff was other than substantially as alleged. That, after the trial was in progress and the jury impaneled, the plaintiff was permitted to treat his complaint as amended, and introduced proof tending to show that the injury incurred extended to the ankle and would result in a permanent injury to the limb, accompanied by anchylosis. That defendant at once pleaded surprise, and stated to the court and counsel for plaintiff that the defendant was surprised, and that the defendant was not able at the present time to produce evidence to rebut such testimony, and that if the trial was forced to a conclusion at the present term, and the result was adverse to the defendant, the defendant would ask for a new trial on the grounds of surprise, in addition to such other grounds as might appear. But defendant made no objection at the time to the introduction of testimony touching the allegation that the plaintiff had suffered permanent injury, and made no motion to continue the case on the grounds of surprise. That the trial proceeded, and that on the first adjournment of the court thereafter, to-wit: about 10-15 P. M. on the evening of March 5th, defendant in consultation concluded to ask the court to cause the plaintiff to be examined touching his injury; and that on the morning of the 6th of March, being the morning following the adjournment at night, the court, at the request of the defendant, caused the plaintiff to submit to a physical examination by Dr. Fred Youngblood and Dr. M. Knight. That defendant, as its first testimony in defense, introduced said medical testimony, not knowing what had been the result of the examination or what conclusion had been arrived at therefrom; that said medical testimony was to the effect that the said plaintiff had not suffered any such injury as complained of. That there had been absolutely no fracture of either bone of the leg, and that, aside from a slight swelling that was apparent in the foot or ankle, there was no evidence of any injury. That defendant was unable during the course of the trial to produce other and further evidence touching the matter of said injury. That, if granted a new trial herein, it will take the usual legal steps to have in attendance at such new trial one Dr. Boen, who, as shown by the evidence, was in attendance upon the plaintiff from the time his injury was first dressed until such time as no further medical attendance was deemed necessary. That said Doctor Boen, as affiant is informed and believes, resides in a distant portion of the county, and that his attendance can be procured at the next term of this court. Also that the defendant will produce an X-ray machine with expert attendant at the next term of this court with a view of testing the exact condition of plaintiff's right leg and ankle at the point or points alleged to have been injured, if permitted by the court. That such newly discovered evidence is material, and that under the facts and circumstances in this case defendant could not, with reasonable diligence, have discovered and produced said evidence at the trial of this case. And further this affiant sayeth not."

The record entry denying the motion for a new trial shows the following findings of fact by the court:

"Now, comes the defendant by its attorney and files motion for a new trial, and the court, after hearing the motion and argument of counsel, and being fully advised in the premises, doth find that in the evidence in chief of plaintiff there was proof tending to show a permanent

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