Missouri & North Arkansas Railroad Company v. Vanzant

• Decision Date: 09 October 1911
• Citation: 140 S.W. 587,100 Ark. 462
• Parties: MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. VANZANT
• Court: Arkansas Supreme Court

140 S.W. 587

100 Ark. 462

MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. VANZANT

Supreme Court of Arkansas

October 9, 1911

Appeal from Searcy Circuit Court; George W. Reed, Judge; affirmed.

Judgment affirmed.

W. B Smith, J. Merrick Moore and H. M. Trieber for appellant.

1. There was no evidence of negligence. Negligence of the master, in cases of this character, will not be inferred merely from the happening of the accident, but the burden is on the plaintiff to prove it. 89 Ark. 50; 79 Ark. 437; 91 Ark. 388.

2. Plaintiff assumed the risk of injury. 97 Ark. 486.

S.W Woods, for appellee.

1. Appellant made no objections to the testimony or to the instruction, and can not be heard to complain about them in this court. 46 Ark. 96; 70 Ark. 348; 71 Ark. 242. The question of negligence was one of fact to be determined by the jury from the evidence, under proper instructions; and in testing the sufficiency of the evidence this court will give it its strongest probative force in favor of the verdict. 97 Ark. 486; 48 Ark. 495.

2. The question also of assumed risk was one for the jury to settle under proper instructions.

OPINION

FRAUENTHAL, J.

This was an action instituted by the appellee to recover damages for personal injuries which he alleged he sustained by reason of appellant's negligence. Appellee was employed by appellant as a section hand, and one of his duties was to assist in loading cotton on cars. On the occasion of the alleged injury, he and two other section hands of appellant were engaged in loading some bales of cotton from the depot platform at the station of Gilbert into a box car. The box car was located upon a sidetrack about 16 feet from the platform, which consisted of cinders raised about two feet above the level of the ground. The bottom of the car was about four feet higher than the platform, and the bales of cotton were rolled from the platform into the car upon a skid, which was about 10 to 12 inches wide and extended from the platform up to the door of the car. The appellee was at one end of the bale of cotton, and his two fellow-servants were at the other end, and the bale was, by their combined efforts, being rolled over and over on the skid from the platform to the car. The appellee had a cotton hook in his right hand which he attached to the end of the bale, and, by grasping the bale also with the other hand, he assisted in rolling it up the skid. When the bale approached to within a short distance of the car, the two fellow-servants on the opposite side jerked it so far to that side that it became unbalanced, and they then loosened their hold and permitted it to fall. At this time appellee was holding to the cotton hook, which was attached to the bale, and was absorbed in his work of turning the bale. On this account, and because the end of the bale extended above his head, he could not see his fellow-laborers on the other side at the time they jerked and dropped the bale. As the bale slipped, it caused the end at which appellee was at work to suddenly fly up, and as it fell down on the opposite side of the skid, it pulled him against the skid, injuring him painfully and severely. The jury returned a verdict in favor of appellee, assessing his damages at $ 175.

It is not claimed by appellant that the amount of the verdict is excessive. The grounds upon which it asks a reversal of the judgment are that the appellee has failed to prove any negligent act on the part of appellant or said fellow-servants causing the injury, and that the undisputed evidence shows that the injury was due to a risk which appellee assumed in accepting and performing the duties of this service. It is well settled, we think, that negligence must be proved like any other fact, and will not be presumed. The burden of proving negligence is upon the party who alleges it; and in this case it rested upon the appellee. In order to prove negligence, the testimony must show that the act caused the injury, and that such act was one of negligence. The mere fact that the injury has resulted from an act will not alone be sufficient to prove that the act was negligent. It must be shown by testimony other than the happening of the occurrence or the accident that the act causing the injury was one of negligence. The presumption is that due care was exercised, and the failure to use such due care can not be inferred alone from the occurrence of the accident. But that the act was one of negligence and caused the injury need not be proved by direct evidence. This may be shown by the facts and circumstances in the case from which such negligence may be reasonably inferred; and the manner in which the occurrence happened may be taken into consideration, with such other facts and circumstances, in determining the act which caused the injury and whether such act was one of negligence. St. Louis, I. M. & S. Ry. Co. v. Rice, 51 Ark. 467, 11 S.W. 699; Fordyce v. Key, 74 Ark. 19, 84 S.W. 797; St. Louis & S. F. Rd. Co. v. Wells, 82 Ark. 372, 101 S.W. 738; St. Louis, I. M. & S. Ry. Co. v. Reed, 92 Ark. 350, 122 S.W. 645.

In the complaint, the acts of negligence charged against the appellant were (1) that the appellant set its box car on a sidetrack at a distance from the depot platform and had negligently furnished a set of skids upon which to roll the cotton to the car, and (2) that the fellow-servants had wilfully or negligently permitted the bale of cotton to fall. The first act of negligence is predicated upon the principle that appellant was under obligation to exercise reasonable care in furnishing to appellee a safe place and safe appliances with...