Kansas City Southern Ry. Co. v. Livesay

• Decision Date: 26 April 1915
• Docket Number: (No. 345.)
• Citation: 177 S.W. 875
• Parties: KANSAS CITY SOUTHERN RY. CO. v. LIVESAY.
• Court: Arkansas Supreme Court

177 S.W. 875

KANSAS CITY SOUTHERN RY. CO. v. LIVESAY.

(No. 345.)

Supreme Court of Arkansas.

April 26, 1915.

Appeal from Circuit Court, Polk County; Jeff. T. Cowling, Judge.

Action by C. Livesay against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause dismissed.

Read & McDonough, of Ft. Smith, for appellant. Elmer J. Lundy, of Mena, for appellee.

SMITH, J.

Appellee was a fireman, and was so employed on an interstate train running from Heavener, Okl., to points north in other states. It is alleged and admitted that he was engaged in interstate commerce at the time of his injury. He claims that his injury, which was a rupture, occurred at the town of Salisaw, Okl., on November 16, 1913, at about 1:45 a. m. The train on which appellee was employed was an extra through freight. The train left Heavener at 6:40 p. m., and stopped at Spiro for orders and to take water, and its next stop was at Salisaw for water. After reaching Salisaw they took coal, and then backed the engine down to the tank to take water. Appellee testified that it was his duty to move the water crane into place to convey the water into the tank of the engine, and that after taking water he was engaged in pushing the crane back into position, when he stepped upon a bolt lying upon the top of the water tank, and that the bolt turned under his foot and caused him to be thrown against the edge of the tank. He was seriously injured, and recovered substantial damages. The presence of this bolt constitutes the negligence complained of.

Appellant, in its answer, denied that it was guilty of any negligence, and pleaded, as separate defenses, negligence on the part of appellee and the assumption of risk.

The presence of the bolt upon the tank was one of the issues of fact raised by the evidence; but the verdict of the jury is conclusive of the fact that the bolt was upon the tank, and of the further fact that appellee was injured by stepping on it. Appellee described the bolt as being six or eight inches long and about the size of a chair post.

A number of witnesses testified concerning the duty of appellee to have inspected his engine before leaving the roundhouse. The evidence of the appellant is to the effect that this duty was imposed upon appellee; but he offered evidence that such was not his duty, and that he was under no duty to make any inspection for defects of any kind. It was shown, however, and the proof appears to be undisputed, that it was his duty to make a cursory examination of his engine; and it was also shown that he was at the roundhouse for an hour or longer before the departure of his train. Appellee testified that his engine was a coal burner, and had been cut loose from the train at the time of the accident, and that he had only the engine, tender, and tank, the tank being a part of the tender; that there was a manhole opening into the tank, and that it was necessary for him to stand on the platform around the manhole to reach for the spout of the crane to let the water in; that there was a partition which cuts the coal off from the back end of this platform, but there were two lumps of coal, a piece of rubber hose, an iron bar, and about two inches of cinders on this platform, in addition to the bolt. Appellee carried an oil torch, which threw a bright light, but which was placed by him on the coal, and did not light up that part of the platform where the bolt was lying. Appellee testified that there was...