Missouri Pacific Railroad Co. v. Horner

• Decision Date: 01 April 1929
• Docket Number: 239
• Citation: 15 S.W.2d 994,179 Ark. 321
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. HORNER
• Court: Arkansas Supreme Court

15 S.W.2d 994

179 Ark. 321

MISSOURI PACIFIC RAILROAD COMPANY v. HORNER

No. 239

Supreme Court of Arkansas

April 1, 1929

Appeal from Franklin Circuit Court, Ozark District; J. O. Kincannon Judge; reversed.

Judgment reversed and case remanded.

Thomas B. Pryor, Vincent M. Miles and Thomas B. Pryor Jr., for appellant.

Dave Partain and Starbird & Starbird, for appellee.

OPINION

MEHAFFY, J.

Appellee brought this suit in the circuit court, alleging that in January, 1927, he was in the employ of the appellant, at the particular time loading wheels on freight cars, and, on the 13th day of January, was ordered and directed by his immediate foreman and boss in said work to quit that work and move a load of air-brake cylinders about 100 feet to the place where they should be stacked; that the cylinders were large, heavy machinery, each separate piece weighing about 300 pounds; that it was a job for two men, and that, when appellee was ordered to do this work, he asked for a helper, and the foreman promised to furnish him a helper.

The cylinders had to be moved across a crane track which had just been put in, and along which there were soft and muddy places, and across a railroad track to a platform, upon which the same were to be lifted and stacked. He alleged that it was raining at the time, and no danger was apparent; but, whatever danger there was, was obscure. He had never been employed in moving machinery of the kind and weight, and did not foresee any danger, but he knew if he refused to do the work alone that he would lose his job. He moved several of the cylinders to the platform, and was engaged in moving one across the crane track, when, on account of the wet, muddy and dangerous condition of the ground, track and foundation, and the weight and form of said machinery, the same slipped into a ditch, in and under the crane track, and in the emergency, in trying to save himself and the machinery and prevent the same from falling into the ditch and in and under the crane track, plaintiff's back and muscles and ligaments thereof were wrenched, sprained and torn, and plaintiff was permanently injured. He was afterwards put in the bolt room, where the work was light, but was required to sign a release of liability for his injury. He believed that he was not injured very much, and would soon recover, and signed the release; but, instead of recovering and being able to work, he grew rapidly worse. He spent about three weeks in the hospital, attended by the company doctor. That, before the injury, plaintiff was able to do the work which any other man could do, but since his injury he is only able to do very light work, and no work that requires strength in his back.

The appellant answered, denying all the material allegations of the complaint, and pleaded in bar the release signed by appellee, and pleaded assumed risk.

There was a judgment for the appellee, and appellant filed a motion for a new trial, which was overruled, and this appeal is prosecuted to reverse said judgment.

No one saw the accident except appellee himself, and there is therefore no testimony except his as to how it occurred. He testified that on the day of the injury he was helping load wheels, and that his foreman, Mr. Reeder, came over and said to him, "Go over there and move some air-brake cylinders." There were eight of them to be moved, and they weighed 300 pounds apiece. They had to be moved across a crane track, and put on a platform. He had been working about 30 feet from the place where the cylinders were to be moved. He asked his foreman for help, and the foreman told him to go on to work and he would get him some help, and he started to work moving the cylinders; got three over, and started with the fourth one. It got down where they had dug out for this track, and it was soft there. They had not quite filled up around it. It was filled with cinders, and they had settled down after the rain. He started across the track with this cylinder, and it slipped down into this hole. They had started filling the hole the day before. It was soft around that place. When he got this fourth one over to this place and started across, it slipped off down in this hole. He went to one side and lifted it up, and then to the other side. It had been raining, and the ground was wet and slick. When he started out with the other side it threw him around and hit his back against this concrete. It hurt him pretty bad, and he started to the office.

The above is all the testimony there is in the record as to how appellee received his injury.

Appellant first contends that the evidence is not sufficient to sustain the verdict. In other words, that the evidence of the appellee himself failed to show any negligence on the part of the appellant.

The appellee testifies that the cylinders, he thought, weighed 300 pounds, but he admitted that he had not weighed them.

The foreman testified that the cylinders were round, and would roll; that they were 46 1/2 inches in length and 12 inches in diameter, and weighed 225 pounds.

The evidence shows that the cylinders were to be moved about 50 feet, and the appellee had actually moved three of them, and, in moving the fourth one, the ground was wet and slippery, and it slipped into a hole.

There is no dispute about the appellee being injured. There are many injuries to persons and property for which the law furnishes no redress, and proof of injury alone, without proof of negligence causing the injury, does not entitle one to recover. One is entitled to recover for negligence only when the negligence complained of causes the injury. The negligence complained of principally in this case is that the appellee asked for a helper, and appellant's foreman promised him a helper, but did not furnish one, and that, because he did not furnish the helper, appellee was injured. As to the place to work and the condition of the ground, there is no evidence tending to show that there was...