Mackay Telegraph & Cable Co. v. Rowland

• Decision Date: 15 December 1913
• Parties: MACKAY TELEGRAPH & CABLE COMPANY v. ROWLAND
• Court: Arkansas Supreme Court

162 S.W. 54

110 Ark. 456

MACKAY TELEGRAPH & CABLE COMPANY v. ROWLAND

Supreme Court of Arkansas

December 15, 1913

Appeal from Saline Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

Marshall & Coffman and Mehaffy, Reid & Mehaffy, for appellant.

1. Appellee both assumed the risk and was guilty of contributory negligence. By his own testimony he knew just how the car was loaded, and, with a full knowledge of the conditions voluntarily took a place on the end of a tie outside of the poles--the most dangerous place he could have found. 96 Ark 206; Id. 387; 3 Labatt on Master & Servant (2 ed.) § 1183; 1 Id. (1 ed.) § 274-a; 4 Id., § 1310, note 1; 97 Ark. 486; 63 L. R. A. 551; 77 Ark. 373; 101 Ark. 205; 117 S.W.710.

2. The court erred in its sixth instruction in charging the jury that appellee did not "assume the risk created at the time of the injury by the negligence of the defendant, its agents or servants, of which he did not know," etc., because there is no evidence on which to base such an instruction. Appellee was thoroughly familiar with the whole situation. Moreover, the instruction assumes that there was a risk created at the time by the negligence of the master. 93 Ark. 29; 71 Ark. 39; 75 Ark. 76. The instruction was in conflict with other instructions. 99 Ark. 377; 100 Ark. 433.

Davis & Pace, for appellee.

1. The court properly refused to direct a verdict for the appellant. It is established by the evidence that it was no part of appellee's duty to load the car or to operate the same, also that the manner in which the car was loaded and operated was negligent, and was the direct cause of the car being derailed and appellee injured.

There were issues of fact to be determined upon conflicting testimony, and the jury's finding will not be disturbed, there being evidence to support it. 65 Ark. 116; 62 Ark. 225; 67 Ark. 433; 70 Ark. 136; 97 Ark. 86.

2. There was no error in the instructions given. If there were verbal inaccuracies, and there were none so serious as to affect the meaning intended to be conveyed, appellant should have called the court's attention to them specifically. 100 Ark. 269; 98 Ark. 234; Id. 362; 65 Ark. 260; 66 Ark. 46.

OPINION

MCCULLOCH, C. J.

This is an action instituted by the plaintiff, W. B. Rowland, against defendants, Mackay Telegraph & Cable Company and the Chicago, Rock Island & Pacific Railway Company, to recover compensation for injuries received by plaintiff on March 21, 1912, while he was riding on a hand-car loaded with telegraph poles.

The hand-car was being operated by the telegraph company for the purpose of distributing poles to be erected along the right-of-way of the railroad, the railway company having under contract with the telegraph company granted the latter permission to use the tracks and right-of-way for that purpose.

The two defendants were jointly sued, but the allegations of negligence were separate, and on the trial of the case the jury returned a verdict in favor of the plaintiff against the telegraph company, but in favor of the railway company, and the telegraph company alone has appealed. The railway company being thus eliminated from the case, the questions presented to us for review relate entirely to the liability of the telegraph company.

The telegraph company is a domestic corporation organized for the purpose of constructing and operating a telegraph line in this and other States. It proceeded to erect its lines and poles along the right-of-way of defendant railway company, and the two corporations entered into a written contract whereby the right to do so was granted to the telegraph company, and the railway company agreed, for a stipulated price, to furnish an engine and a crew for the purpose of distributing material along the line. It was also agreed in the contract that the telegraph company could use hand-cars, push-cars and motor-cars, as it might find necessary to do so, in the construction of the line, but under the proviso that "all such hand, push or motor cars shall, whenever in service, be in charge of a pilot to be furnished by the railroad company at the entire expense of the telegraph company, the movements of the same to be subject to the reasonable regulations of the railroad company." The contract also contained a clause whereby the telegraph company undertook to "indemnify and save harmless the railroad company from or on account of any and all liability * * * for any injury to or death of the servants or employees of the telegraph company, or of the railroad company, or of any other person or corporation, which shall arise out of or in any manner be caused by the operation of any such train service, or the distribution of any such material, or in the use or operation of any hand, push or motor cars upon the premises of the railroad company, whether such liability shall in any case be due to the negligence, in whole or in part, of any of the railroad company's employees, irrespective of capacity in which serving, or otherwise."

Plaintiff was a conductor employed by the railway company and was, on December 14, 1911, designated by his superior to accompany the force of workmen in charge of constructing the telegraph line as pilot of a hand-car used in distributing poles. He worked in that capacity from then until the date of his injury on March 21, 1912. The crew of the telegraph company was composed of a foreman and four workmen, and they took the car to Hot Springs for the purpose of getting a load of telegraph poles to distribute along the line of the railroad. Six poles, twenty-five feet long, were loaded on the hand-car, three poles being placed on each side of the handle bars and were wired in that position, the wires passing around the bed of the car so as to fasten them to the car. A railroad tie was placed under the poles at each end of the hand-car, and a place was arranged in front on which the plaintiff was to ride. Plaintiff took his position and the crew proceeded out of Hot Springs running the hand-car and had proceeded about a mile, and were going downhill, when the car was derailed and threw plaintiff to the ground, inflicting serious injury.

Damages were awarded by the jury in the sum of $ 13,000.

The evidence tended to show that the car, at the time of the derailment, had attained a speed of about ten miles an hour, which caused the poles to sway or "weave," as some of the witnesses termed it, and the force thereof caused the rocking of the car. At the place of the derailment there was a slight defect or "low-joint" in the track, and negligence of the railway company is charged in permitting the track to get out of repair. However, as the verdict of the jury has exonerated the railway company from the charge of negligence, that feature of the case calls for no further discussion.

Negligence of the telegraph company is alleged in the defective loading of the car, and also in the operation of the car downhill at a high rate of speed.

The evidence is, we think, sufficient to establish the charge of negligence in both respects, and that the acts of negligence in either or both of those respects constituted the proximate and efficient cause of plaintiff's injury.

The witnesses testified that it was generally the custom to wire the poles together, but not to wire them to the car, and some of them testified that the wiring to the car rendered it dangerous in operating the car, especially at a high rate of speed. It is not an unreasonable conclusion that the lashing of heavy and lengthy telegraph poles to the car formed a union that would cause the car to follow the movements of the telegraph poles, and the jury had a right to draw a deduction that this was not the exercise of ordinary care.

There was abundant evidence that it was dangerous to run a hand-car, loaded in that way, at a speed of more than four or five miles an hour, and the testimony was sufficient to warrant the finding that this car was allowed to attain a speed of ten miles an hour running down grade.

The real questions in the case relate to the responsibility for these conditions, and the further questions of negligence and assumed risk on the part of the plaintiff which would prevent his recovering compensation for his injuries.

It is earnestly insisted by learned counsel for the defendant telegraph company that the evidence is insufficient to sustain the verdict, and that the court should have given a peremptory instruction in the case in its favor. This is the principal question presented to us, and the solution of it practically settles the case.

The contention of the telegraph company is that the plaintiff was in charge of the car, and controlled, not only the loading of it, but the method of operation, and that he alone is responsible for the derailment which caused his injury, if it resulted from negligence, and not from mere accident.

We are however, of the opinion that the evidence was sufficient to warrant the finding contrary to that contention. The contract between the two corporations designated the person to be sent out by the railway company to accompany the hand-car as a "pilot." The contract itself does not undertake to specifically define his duties, but the obvious purpose was for a man to accompany the crew who was competent to protect the property of the railway company and prevent collisions. The evidence establishes the duty of the plaintiff with respect to the operation of the hand-car. While he was a conductor in the employ of...