A. J. Neimeyer Lumber Co. v. Watson

• Decision Date: 10 June 1918
• Docket Number: 33
• Citation: 204 S.W. 310,134 Ark. 491
• Parties: A. J. NEIMEYER LUMBER COMPANY v. WATSON
• Court: Arkansas Supreme Court

204 S.W. 310

134 Ark. 491

A. J. NEIMEYER LUMBER COMPANY v. WATSON

No. 33

Supreme Court of Arkansas

June 10, 1918

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed.

Buzbee Pugh & Harrison, for appellant; W. R. Donham, of counsel.

Plaintiff assumed the risk and a verdict should have been directed for the defendant. The damage was well known and obvious. 56 Ark 237; 98 Id. 206; 68 Id. 315; 95 Id. 196; 100 Id. 465; 97 Id. 486; 119 Id. 481; 116 Id. 56; 113 Id 359; 174 S.W. 150; 180 Id. 984; 198 Id. 530.

T. N. Robertson and A. J. DeMers, for appellee.

The injury was the result of negligence and plaintiff did not assume the risk. 78 Ark. 505; 6 Thompson on Negl §§ 4254, 4275-6; 79 Ark. 53; 103 Id. 61; 48 Id. 333, 346; 88 Id. 548; 87 Id. 396; 107 Id. 118; 46 Mo. 163. Plaintiff was young and inexperienced and the danger was not obvious and patent. This was a clear case for a jury, and the testimony supports the verdict.

STATEMENT OF FACTS.

Mack Watson sued the A. J. Neimeyer Lumber Company to recover damages for personal injuries sustained by him while in its employment. Watson was in the employment of the defendant as a brakeman on one of its log trains and was injured while attempting to make a coupling between an engine and a car loaded with logs on one of the spur tracks of the defendant in Saline County, Arkansas. The accident occurred in the night time at the foot of a little down grade. Watson was injured while attempting to couple a slowly-moving engine to a stationary car. He had gotten off of the engine and gone ahead to where the car was placed on the spur track and signaled the engineer to come ahead. The engine moved forward for the purpose of coupling the front end of the engine to the car and then backing off of the spur track with it. In the drawhead of the engine there was a reach-bar about fourteen inches long. Watson attempted to put this reach-bar into the drawhead of the car. He had hold of the reach-bar with his left hand for the purpose of guiding it into the drawhead. The reach-bar struck the lower side of the drawhead and glanced to one side. This caused his hand to be caught between the drawhead and the reach-bar, causing the loss of his left index finger. The reach-bar on the engine was fixed so that it worked up and down or from side to side. It was made to work up and down about three inches in order to couple two cars or an engine and a car of unequal height. It had a lateral play of about two feet in order to enable the cars to go around the curves in the track. The tracks in general followed the natural curvature of the ground. There was very little grading done. The regulation length of the reach-bars used on the logging road was twenty-four inches. The plaintiff states that on account of the shortness of the reach-bar he had to place his hands close to the drawhead on the engine so that when it turned back it caught his hand and crushed it; that the reach-bar failed to enter the drawhead on the car because the car was on a higher level of the track than the engine.

On the part of the defendant it was shown that the reach-bars were constructed out of old iron rods and varied in length from fourteen to twenty-four inches. Watson had been in the employment of the defendant about two years at the time he was injured. For all except two months of this time he was engaged in performing the duties of a tong-hooker in loading logs. For the two months just preceding the accident he had been employed as a brakeman. The same engine was used during the period of his service as brakeman but reachbars of various lengths were attached to it. Sometimes a reachbar 14 inches long was used, and at other times a 24-inch reachbar was attached to the engine.

The jury returned a verdict for the plaintiff and the defendant has appealed.

OPINION

HART, J., (after stating the facts).

It is insisted by counsel for the defendant that under the facts disclosed by the record, that the defendant was not guilty of negligence and that the injury received by the plaintiff in making the coupling was one of the ordinary risks of his occupation as a brakeman which he assumed when he entered the employment of the defendant. It was the duty of the defendant to exercise ordinary care to furnish a locomotive engine and track suitable for the work which it required the plaintiff to perform and it was responsible to the plaintiff for an injury resulting...