Kurn v. Faubus
| Decision Date | 08 July 1935 |
| Docket Number | 4-3940 |
| Citation | 84 S.W.2d 602,191 Ark. 232 |
| Parties | KURN v. FAUBUS |
| Court | Arkansas Supreme Court |
Appeal from Washington Circuit Court; John S. Combs, Judge reversed.
Judgment reversed and remanded.
J W. Jamison and Warner & Warner, for appellants.
Appellee instituted this suit in the Washington County Circuit Court against appellants, as receivers of the St. Louis-San Francisco Railway Company, to compensate a personal injury received by him on March 8, 1933. The complaint, in part, alleged that:
"Plaintiff states that the said C. H. Garrison, foreman, and with full authority to direct him, and with full knowledge of his physical condition and the peril to which he would be subjected by heavy lifting, negligently and carelessly directed him to assist another employee in unloading said engine boxes or bearings from said baggage car onto the trucks at the station; that he, at the time, advised said foreman, C. H. Garrison, that he was not able to lift said boxes or bearings, but was again ordered and directed in a very harsh manner to proceed with the unloading of said boxes or bearings, and that, through fear of losing his job if he refused to obey the orders and commands of his superior, who was C. H. Garrison, he proceeded to assist in the unloading of said boxes or bearings; that in unloading the same it was necessary to lift said heavy machinery, and while attempting to lift one of said boxes or bearings he wrenched and sprained the muscles of his back in the left lumbar region, thereby causing pyelitis and lumbar weakness, and as a result of said injury, which was caused by the negligence and carelessness of said defendants, their agents and employees, as aforesaid, he has, since said 8th day of March, 1933, been totally disabled and will be continuously, for the balance of his life, totally disabled from following any occupations; that he has, by reason of said injury, suffered great pain and will continue to suffer; that he has been, and will continue to be, under the care and treatment of a physician, and has and will be forced to expend money for doctors' bills and medicine." Damages were laid at $ 25,000.
Appellants answered the complaint thus filed by general denial and affirmatively pleaded assumed risk and contributory negligence in bar of recovery. Upon trial to a jury testimony was adduced in behalf of appellee to the following effect: That on March 8, 1933, appellee was in the employ of appellants at Fayetteville, Arkansas, as caretaker of a motor car and certain railway coaches, and that C. H. Garrison was his foreman; that on said date the train which arrived from Muskogee, Oklahoma, had on board two boxes containing bearings for locomotive engine drive wheels each of which weighed approximately six hundred pounds, and Garrison as foreman directed appellee and one Robinson to unload said boxes of bearings; that appellee upon being directed by Garrison to assist in the unloading of said boxes advised Garrison that he was physically unable to make such heavy exertion, and in response thereto Garrison responded: "If you can't lift them, you can roll them"; that appellee and Robinson unloaded the first box of bearings by rolling it and without accident or injury; that in unloading the second box of bearings appellee received his injury in the following manner: That it was necessary to lift or carry the second box of bearings because it was located behind a post at or near the end of the car and that appellee was seriously and permanently injured in effecting this lift.
The jury returned a verdict in favor of appellee and against appellants for a substantial sum, and a judgment was accordingly entered, from which this appeal comes.
By timely request for a peremptory instruction which was properly reserved in its motion for a new trial, appellant contended in the lower court, and asserts here...
To continue reading
Request your trial