Missouri Pac. R. Co. v. Martin, 4-2883.

• Decision Date: 27 February 1933
• Docket Number: No. 4-2883.,4-2883.
• Parties: MISSOURI PAC. R. CO. v. MARTIN.
• Court: Arkansas Supreme Court

57 S.W.2d 1047

MISSOURI PAC. R. CO. v. MARTIN.

No. 4-2883.

Supreme Court of Arkansas.

February 27, 1933.

Rehearing Denied April 3, 1933.

Appeal from Circuit Court, Faulkner County; W. J. Waggoner, Judge.

Suit by J. Q. Martin against the Missouri Pacific Railroad Company. From a judgment in favor of plaintiff, defendant appeals.

Judgment reversed, and case dismissed.

Thos. B. Pryor, of Fort Smith, and Harvey G. Combs, of Little Rock, for appellant.

Bird & Coffelt, of Little Rock, for appellee.

McHANEY, Justice.

Appellee was employed by appellant to work in its yards connected with its North Little Rock shops. At the time of his injury, hereinafter mentioned, he was engaged in stenciling coal cars. It was usual and customary to do this work out in the yards in the open in good weather, but on the morning of October 23, 1930, the date of the injury complained of, it was raining to such extent that such work could not proceed in the open, and about 1 p. m. of said date, the rain continuing, the foreman caused ten coal cars to be moved under the sheds, and directed appellee to stencil the cars. There were a number of tracks under the sheds about eight or ten feet apart. There had been stacked a pile of grain strips between the track on which the coal cars were placed and another; same being about two feet wide and one and one-half or two feet high, and held together by stakes driven in the ground. These grain strips were three-cornered pieces of wood of about two inch faces, about thirty feet long, and were used in coal cars to prevent wastage of bulk grain when shipped therein. Some three or four of these strips had fallen off the pile. In moving from one place to another in doing his work, and while carrying his ladder, appellee stepped on said grain strips, which gave way and caused him to fall, injuring his back.

A suit by appellee against appellant resulted in a verdict and judgment against appellant.

The only error urged for a reversal of the judgment by appellant is that the court erred in refusing to direct a verdict in its favor on its request, on the ground that the undisputed evidence shows appellee assumed the risk. We must agree with appellant in this contention.

While it is true that appellee was performing his work under the sheds, a place in which he was not accustomed to work, and that he was in a hurry because he was directed to get the ten cars out, a whole day's work in half a day, still this pile of strips was perfectly open and obvious, and whatever danger there was in stepping on them was likewise open and obvious; as much so to appellee as to appellant. He testified himself that he saw the strips, knew some three or four of them had fallen off the pile, and that the pile was higher than the stakes that held them. It is not clear whether he stepped on the pile and slipped, or whether on one of those that had fallen off, but in either event he must have known that to do so might cause him to fall. It was not incumbent, therefore, upon appellant to warn him of such danger, as whatever danger there might be was apparent. As said by this court in Crawfordsville Trust Co., Executor, v. Nichols, Adm'r, 121 Ark. 556, 181 S. W. 904, "Where the elements of...