L. J. Smith Const. Co. v. Tate
| Decision Date | 16 January 1922 |
| Docket Number | (No. 79.) |
| Citation | 237 S.W. 83 |
| Court | Arkansas Supreme Court |
| Parties | L. J. SMITH CONST. CO. v. TATE. |
Appeal from Circuit Court, Boone County; J. M. Shinn, Judge.
Action by Maude Tate, administratrix of the estate of W. R. Tate, deceased, against the L. J. Smith Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.
John W. Nance, of Fayetteville, for appellant.
Geo. J. Crump and Jno. I. Worthington, both of Harrison, for appellee.
This is an action against appellant to recover for the benefit of the estate and the widow and next of kin of W. R. Tate, deceased, damages accruing by reason of the death of the said deceased while working in the service of appellant.
Appellant is a foreign corporation, and at the time of the injuries to Tate, which resulted in his death, was engaged in performing railroad construction work for the Missouri Pacific Railroad Company. The work consisted of filling in a number of high trestles in Boone county on what is known as the White River branch of said railroad company. These trestles were from 60 to 100 feet high, and they were filled in with rock and earth so as to build a dump and eliminate the trestles. Appellant had been engaged in this work for about a year, and its predecessor in the contract had likewise been engaged for more than a year before that time. Tate was foreman of the dumping crew; he had been so engaged throughout the period of appellant's work under the contract, and also had been engaged under appellant's predecessor in this work. This crew consisted of a foreman and four helpers. The earth and rock was taken from adjacent hillsides and by means of steam shovels and other equipment was loaded into dump cars, which were hauled to the trestles by an engine and there unloaded so as to dump the dirt under the trestles. The dumping was, of course, done while the cars were standing on the trestles. The trestle at which deceased received his injuries was originally 119 feet high, and at the time the injury occurred it had been filled in so that it was about 60 feet high. Tate lost his balance and fell from the trestle while releasing the chains so as to cause the car to expel the earth and rock from it. These cars were 26 feet in length, 9 feet in width, and 21 inches deep, and were of a capacity of 60,000 lbs. There were two pairs of dump chains on each side of a car, one near each end of the car, so that the load of dirt could be expelled from either side of the car, according to the necessities of the case. One end of the dump chains with a ring or clevis on it was fastened to the body of the car and the other end with a hook on it was fastened to the truck of the car. The two ends were fastened together by a connection made between the hook and the clevis. Before the car was loaded, the two ends of each dump chain were thus hooked together and the chains became tightened as the load increased. This was, of course, done after each dumping trip was completed. When a car was in place to be dumped, the ends of the chain were disconnected by knocking loose the ring or clevis, and when each of the two pairs of dump chains on the side of the car were disconnected, the weight of the load caused the floor of the car on the opposite side to drop down suddenly, so that the load slid out. This knocking loose of the ring or clevis was done by an iron implement called a knocker.
It was part of the duty of the foreman of the dumping crew to knock loose the clevis, and Tate, while performing this service, fell from the trestle and received injuries which caused his death 14 days later. When he struck the clevis with the knocker and the hook became disconnected, it swung out with such force that it hit the knocker in Tate's hands and caused him to lose his balance. He was standing on the end of the ties when this duty was performed.
The dump chains were composed of links about six inches in length, made of steel or iron rods about an inch in diameter. The chains and hooks, of course, were in plain view of a person using the knocker, and according to the undisputed evidence in the case a twist in the chain could be readily observed by the one doing the knocking.
Tate had been sick for a week or more before the date of his injury and returned to his work that morning considerably weakened by the illness. His injury was received while he was dumping the first car. This occurred on Monday morning, and the train of cars had been loaded the Saturday before, during Tate's absence, and the first opportunity he had to observe the manner in which the chains had been hooked together was after he had knocked loose the chains on one end of the car, and with the whole weight of the load on the last chain he had proceeded to knock it loose. He was then, as before stated, standing on the trestle 60 feet high.
There was, according to the testimony, a rod on the side of the car which he could have taken hold of with his hand not using the knocker, or he could have taken hold of the flange of the wheel; that before the car was dumped the wheels were fastened to the track by means of heavy chains so as to prevent the car from turning over or "bucking" when the bottom dropped for the load to slide out.
There are several acts of negligence charged in the complaint, but the one upon which appellee relies to sustain the recovery of damages is that this particular pair of dump chains had been improperly connected together; that, instead of properly connecting the hook and the clevis so that the hook would hang parallel with the body of the car, it was connected with a half twist in the chain so that the hook turned out from the body of the car, and when the whole weight of the load fell on this chain it would, when released by the stroke of the knocker, swing out with great force and strike the implement in the hands of the foreman. The complaint also contained allegations that there was negligence with respect to overloading the car; also that the handle of the knocker furnished to deceased was too long for proper use in performing his duties.
Appellant in its answer denied each of the charges of negligence and pleaded both contributory negligence and assumption of the risk on the part of Tate. At the trial the jury returned a verdict in favor of appellees, and fixed damages at the sum of $5,000 for the benefit of the widow and next of kin, but awarded no damages for the benefit of the estate.
The principal ground urged here for reversal of the judgment is that the evidence is not sufficient to sustain the verdict, and that the trial court should have given a peremptory instruction. The contention is that there was no negligence on the part of appellant's servants proved and that, according to the undisputed evidence, Tate should be held to have assumed the risk. Each of these issues was submitted to the jury upon correct and appropriate instructions, and we are of the opinion that the evidence was sufficient to sustain the verdict.
The two ends of each of the pair of dump chains were hooked together by other servants of appellant during Tate's absence. It was not, according to the evidence, part of his duty to see that the chains were properly...
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