A. L. Clark Lumber Co. v. Northcutt

• Decision Date: 30 May 1910
• Citation: 129 S.W. 88,95 Ark. 291
• Parties: A. L. CLARK LUMBER COMPANY v. NORTHCUTT
• Court: Arkansas Supreme Court

129 S.W. 88

95 Ark. 291

A. L. CLARK LUMBER COMPANY v. NORTHCUTT

Supreme Court of Arkansas

May 30, 1910

Appeal from Pike Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirmed.

McRae & Tompkins and D. L. McRae, for appellant.

Under the circumstances plaintiff can not be heard to say that he did not know the car was on the track wrong end in front. 79 Ark. 241; 41 Ark. 542; 48 Ark. 333; 58 Ark. 125; 78 Ark. 520. Plaintiff is presumed to have been aware of the danger arising from the act of so placing the car on the track. 122 S.W. 118; 126 S.W. 375; 76 Ark. 69. He assumed the risk of the danger incident to the riding of the car so placed on the track. 56 Ark. 237; 58 Ark. 125. An instruction which singles out and gives undue prominence to certain facts is improper. 86 Ill. 62; 59 Ind. 105; 43 Md. 70; 81 Ill. 478; 33 Mich 143; 57 Mo. 138; 45 Ark. 256. Instructions should be hypothetical. 31 Ark. 699.

W. P Feazel, for appellee.

There was no error in refusing to direct a verdict for defendant. 71 Ark. 445; 76 Ark. 522; 89 Ark. 534. The question was one of fact, and was properly submitted to the jury. 77 Ark. 278; 87 Ark. 321; 90 Ark. 228; 89 Ark. 522. The evidence does not show that appellee was guilty of contributory negligence. 90 Ark. 226; Id. 556; 89 Ark. 427; 87 Ark. 327; 122 S.W. 118. He did not assume the risk of the danger to which he was subjected. 77 Ark. 378; 90 Ark. 228; 90 Ark. 567; 88 Ark. 548; 79 Ark. 56. If one desires an instruction on any particular phase of the case, he should request a proper one. 87 Ark. 528; 89 Ark. 327.

OPINION

FRAUENTHAL, J.

This was an action instituted by a servant to recover damages which he alleged he sustained by reason of the negligence of his employer. The defendant below owned and operated a railroad in connection with its sawmill and lumber plant, and the plaintiff received the injuries complained of while in its employment as a section hand. The injury occurred by reason of the derailment of a handcar upon which the plaintiff at the time was riding at the close of the day's work, and while the car was being taken to the tool house. At the time the section crew was preparing to quit the day's work the foreman who had authority over the crew directed the plaintiff to gather up the tools along the track. While the plaintiff was absent gathering up the tools, the attention of the foreman was called to the fact that the handcar was upon the track with its rear end in front, which was a dangerous way in which to operate the car. The foreman stated that, although it was dangerous to thus run the car, he thought it could be done safely for the distance they intended to go; and he, in effect, directed the crew to operate the car in that manner. The testimony on the part of the plaintiff tended to prove that he did not know that the car was being operated in this dangerous manner; and when he returned he got on the car and with other members of the crew proceeded to propel it. When the car got to the switch, it was derailed, and the plaintiff was severely injured thereby. The testimony tended also to prove that the car was derailed by reason of the improper manner in which it was operated with its rear end in the front.

Upon the trial of the case a verdict was returned in favor of the plaintiff, and the defendant has appealed to this court.

It is urged that the court erred in refusing to grant a continuance of the case upon defendant's motion. The summons in the case was served on September 10, and the case was tried on September 24 following. The defendant asked that the cause be continued in order to allow time to secure the attendance of two witnesses: one of the section crew and the foreman. The testimony which it was claimed that the foreman would give was set out in the motion, and upon the trial this testimony was permitted to be read as evidence in the case.

It was claimed that the defendant had not been able to see the section hand because of the short time since the institution of the suit; and on this account his testimony could not be set out. But it appears that there were at least ten members of this crew, and that a number of them were introduced as witnesses by the defendant; and it does not appear that this section hand knew any facts other than those known by the other members of the crew. The statute prescribes that the case will stand for trial at the term following ten days' service of the summons upon the defendant (Kirby's Digest, § 6190), and it will therefore be presumed that this is sufficient time in which to prepare for trial. The injury occurred in June prior to the meeting of the court; and we do not think that any peculiar circumstances were shown, or any special reasons assigned, so that we can say that the lower court abused its discretion in refusing to continue the case. We have repeatedly held that questions as to continuance of causes rest so much in the sound discretion of the court that, to justify a reversal on the ground of a refusal to continue, it must appear that there has been a clear abuse of that discretion.

At the request of the plaintiff the court gave the following instruction to the jury:

"No. 2. You are instructed that a person engaged in the service of a railroad company, as a section hand, assumes all the risks ordinarily incident to the business for which he is employed, but he does not assume the risks of the negligence of the master himself, or any one [to] whom the master may see fit to intrust his superintending authority, unless it be further shown that the servant was not only aware of the negligence, but he also realized the danger to which he was thereby exposed."

It is urged that the court erred in giving the above instruction because the injury which plaintiff received was due to one of the ordinary hazards of his employment, and was therefore assumed by him.

It is true that when a servant enters into the service of another he assumes all the ordinary risks and hazards incident to the employment; but it is also well settled that he does not assume the risk of any negligence on the part of the master. It is the duty of the master to use reasonable care and diligence in providing for the safety of the servant and in furnishing for his use a suitable and safe place for the purpose of doing the work. He is not an insurer of the servant's safety; and yet he must not expose him to risks or dangers which arise from the master's own negligence. The servant does not, when he enters the service of another or while he continues in that service, assume the risk of dangers that arise from the negligence of the master, unless he is aware of that negligence and appreciates the danger therefrom. And, in the absence of knowledge on his part, the servant has a right to rely upon the assumption that the master has performed the duties devolving upon him so as not to expose him to extraordinary hazards. St. Louis, I. M. & S. Ry. Co. v. Touhey, 67 Ark. 209, 54 S.W. 577; Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367, 92 S.W. 244; Ozan Lumber Co. v. Bryan, 90 Ark. 223, 119 S.W. 73; St. Louis, I. M. & S. Ry. Co. v. Birch, 89 Ark. 424, 117 S.W. 243; St. Louis, I. M. & S. Ry. Co. v. Holman, 90 Ark. 555, 120 S.W. 146; St. Louis, I. M. & S. Ry. Co. v. Corman, 92 Ark. 102, 122 S.W. 116; Labatt on Master & Servant, § 279.

Furthermore the testimony tended to prove that the foreman in effect ordered the...