Appeal from Circuit Court, Independance County; S. M. Bone, Judge.
Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., by J. W. Sanders against Guy A. Thompson, trustee of Missouri Pacific Railroad Company and others, for personal injuries. From a judgment for plaintiff, defendants appeal.
Judgment affirmed on condition of remittitur.
DONHAM, Justice.
This is the second appeal of this case. The opinion on the first appeal was rendered May 24, 1937. It is not reported in a bound volume of the Arkansas Reports, but will be found in Sanders v. Missouri Pac. R. Co., 106 S.W.2d 177. A clear and concise statement of the facts was made by the court on the former appeal; and since, by order of the Court, the opinion was omitted from the last published volume of the Court's opinions as being of no value as a precedent, and since the evidence shown by the record on this appeal is substantially the same as that on the
former appeal, we here set forth said statement of facts in full:
"Appellant alleged and testified that he was severely injured in September, 1935, as the result of a fall occasioned through negligence of a fellow servant. The trial court ruled that proof offered on appellant's behalf was not sufficient to establish liability, and so instructed the jury.
"The accident occurred near Vineland, Mo., and suit was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Appellant was working with others in constructing a large form into which concrete was to be poured in the process of building bridge piers. The lining of the structure was made of one-inch `lagging' laid horizontally and supported by vertical 2 × 4 studs. This was reinforced externally by 4 × 8 horizontal timbers 18 feet long, called `wales,' and these heavier timbers, in turn, were `tied' with steel rods extending from outside-to-outside, through the wales and lagging. The wales were not long enough to reach the full length of the form, and were `spliced' by placing a short piece end-to-end with longer piece. In order to give strength and rigidity, and to overcome defect incident to the use of shorter timbers, the wales were laid two-ply so that the `breaks,' or `joints' were covered by overlapping alternate timbers. When each complement was laid, the result was that two 4 × 8's were bolted side by side, giving a completed 8 × 8 wale.
"The first and second wales had been finished with the crew working from the ground. Thereafter it was necessary for one man to work from the side of the form placing the timbers. For convenience in temporarily placing the wales, brackets were nailed to the 2 × 4 studs at convenient distances along the side of the form, upon which the heavier timbers were laid until bolted.
"At the time appellant experienced his misfortune, he was working at a point about fourteen feet from the ground. He was standing on a completed wale, assisting in the placing of timbers on the bracket above. The first 4 × 8 for the fourth wale had been put in position, but not bolted, when the second timber was drawn up by a fellow servant named Cook, operating from the top of the form by means of a rope. Appellant testified that he had followed the timbers up, and while standing about 6 feet from the end of the form on the bolted 8 × 8 platform, he held to one of the 2 × 4 studdings with his right hand. While in this attitude, one end of the timber which was being drawn up by Cook caught under the bracket near appellant, the other end then extending to a point beyond the west end of the form, where a fellow servant named Robertson was stationed. Appellant says he undertook to disengage the timber from the bracket, and as he did so Robertson negligently jerked the other end; that he (appellant) grabbed for safety and caught the wale that had been temporarily placed on the brackets; that not having been bolted, it turned, and he fell to the ground and sustained serious injuries.
"Appellant admitted that he had been in the bridge building service about four years; that he was experienced in building forms, and knew all about the work.
"We think there was sufficient testimony for submission to the jury. If appellant's claim that Robertson negligently manipulated the timber is sustained, recovery would lie." Obviously, appellant was in a precarious situation, and a high degree of care was required of those assisting him. "Appellant said: `I had the timber out this way (indicating) and this other wale was next to my shoulder. It wasn't fastened, and when he (Robertson) jerked that wale to him, why, it jerked me loose and I hollered at him and grabbed at the first waling that had been put up there, and it rolled over and I fell. * * * Robertson grabbed the timber and jerked it around toward him * * *. That jerked me loose from the studding I was holding on to.'"
It is first contended by appellants that under the proof appellee was not entitled to recover; and that the Court erred in refusing to give appellants' requested instruction No. 1, directing a verdict for appellants.
The Court held on the first appeal on the question of liability that there was sufficient testimony for submission to the jury, stating: "If appellants' claim that Robertson negligently manipulated the timber is sustained,...
