E. L. Bruce Co. v. Leake

• Decision Date: 19 March 1928
• Docket Number: 298
• Citation: 3 S.W.2d 988,176 Ark. 705
• Parties: E. L. BRUCE COMPANY v. LEAKE
• Court: Arkansas Supreme Court

3 S.W.2d 988

176 Ark. 705

E. L. BRUCE COMPANY v. LEAKE

No. 298

Supreme Court of Arkansas

March 19, 1928

Appeal from Nevada Circuit Court; J. H. McCollum, Judge; affirmed.

Judgment affirmed.

McRae & Tompkins, for appellant.

William F. Denman, for appellee.

OPINION

MEHAFFY, J.

The appellee brought suit in the Nevada Circuit Court against the appellant, alleging that he was employed by appellant as brakeman upon its log-train, which operated from the log camp in the woods to the town of Kilgore, a distance of about twelve miles. That on the 12th day of January, 1927, the train was returning from the log camp with a load of logs when, on account of the rough and uneven condition of the track, the train, in rounding a curve, became uncoupled or broke in-two. That it was appellee's duty as brakeman to make the coupling, and he got down from the car, adjusted the drawheads of the couplers, and, after the train started, he stepped upon the step or stirrup on the car he had coupled. That the train was moving, and, as he stood on said step or stirrup, a large stump, standing within a very few inches of the track, caught appellee's foot between the stump and the step on which he was standing, breaking the bones in his foot and causing severe and permanent injuries. That the injury resulted from the negligence of the company in allowing and permitting said stump to stand within a few inches of the track, when it knew or should have known the same was dangerous to its employees. The suit was for $ 3,000.

Appellant filed answer, denying all the material allegations, and pleaded contributory negligence and an assumption of risk.

The appellee is 35 years old; was in the employ of the company as brakeman on a log-train and working under the orders of C. L. York, the engineer, who was his foreman. He was the only brakeman on the train, and his duties were to couple and uncouple cars, set out cars, and make up the train. At the time he was hurt they had made up the train and were coming into Kilgore. They had several cars of logs and flatcars, and the train became uncoupled. Appellee got off to make the coupling, and it was on a curve, and he had to get out some distance, so the engineer could see him when he flagged him. He made the coupling, gave the signal, and, when the train started up, he got on. He caught the train with both hands and pulled himself up on the car, and had gone but a few yards when he hit the stump. His foot was in the stirrup, and when the stump was hit it broke his foot. He did not see the stump until it was hit. There was no switch-track there. He was confined to his room 91 days, and then had to walk on crutches for a time. He had been braking for the company about four years; was earning 35 cents an hour when he was hit, and is able now to earn but little. He had had experience as brakeman on other log roads.

The train would be taken out to the woods where the logs were by pushing the empty cars ahead of the engine, and, when the logs were loaded, the engine then pulled the cars into Kilgore. The track is not level, but there are hills and hollows and soft places, and these cause the couplers to miss or pass over each other.

Appellee got on the train after making the coupling as quickly as he could. He had made a statement about how the injury occurred, and admitted signing the statement which was made to the company. In that he stated that the stirrup cleared the stump about two inches. Appellee went over the road twice every day, and sometimes three times. They made all their trips in the daytime, unless they had trouble.

The physician testified that his foot was broken, and that the injury was permanent. Another physician testified that it was impossible to tell whether the foot was broken without an X-ray, and that he did not think the injury was permanent.

The road was just a log-road cut through the bottom, laid on top of the ground on poles and ties. It is not graded. The bottom there overflows, and the track crosses sloughs. There are obstructions along the side of the track too close to clear a brakeman on the side of a car. There are stumps and logs, and sometimes there are tree-tops. The day appellee was hit the train was on a curve, and there was a stump there that would not clear the brakeman. They had in the train that day six or eight cars. They often have trouble with the train becoming uncoupled or breaking in two. The right-of-way is narrow. The road is not fully spiked. The train would break in two all along the road, and it was appellee's business to couple it.

The company has a section foreman, and it is his duty to keep up the track. The stumps are out in the open, where everybody can see them. There is nothing to hide them. There had been a great deal of trouble with car stirrups being bent back or knocked off by stumps. The road was built to get logs into the mill. There is nothing about the brakeman's duty that requires him to ride on the side of the car while the train is in motion. After he makes a coupling he has to get on the train, but he does not have to ride on the side of the car. He would have to catch the side of the car or rear end. If a coupling is made on a curve, the brakeman would have to move back from the track until he got where he could be seen. When the signal was given the train would start, and the brakeman would have to catch the train while it was in motion. The engineer started the train as quickly as he could after getting the signal. There are sink-holes in the track, stumps, treetops and logs scattered all along the line. They just maintain the track so that they can get the log-cars over it. The track is moved as the timber is cut out. The company has a good deal of trouble caused by obstructions along the track knocking stirrups off the cars. The right-of-way is very narrow, just wide enough for the train to get over. The road is not made for people to travel over. It is safe for a brakeman if he is on the cars. When the train breaks in two, the brakeman has to get on the ground to make the coupling. A man making a coupling would not have the opportunity to see all the obstructions. Practically all work connected with a logging railroad is dangerous.

The appellant's first contention is that the plaintiff assumed the risk, and that the court below should have given a peremptory instruction.

The appellee was the brakeman, and it was his duty to couple the cars and give the engineer the signal to move ahead. At the place where the injury occurred there was a curve that made it necessary for him to get some distance from the track to give the signal, and, when the signal was given, the engineer started the train. After the brakeman had given the signal, he then had to get on the train again after it was in motion. While in the performance of his duty coupling the cars, giving the signal and getting on the train of cars, it was not possible for him to notice obstructions near the track that one could notice who was not engaged in the performance of any duties. Duties must be performed, and there is no contention that he was not performing them in the proper manner.

He testifies that he caught the train with both hands, got his foot in the stirrup, and got on the train as quickly as he could. One riding on a train in the manner that the witnesses testified that the employees had to ride, in the middle of the car, would probably not be able to tell whether the stumps and other obstructions near the track were close enough to injure them or not. He knew there were stumps on the right-of-way, and knew that there were other obstructions. He knew that some of them were near the track but there is no evidence that he knew that they were near enough to injure him. And, unless it could be said that, riding back and forth on the track, as appellee had for a long while, he could tell that the obstructions were close enough to be...