Missouri Pacific Railroad Co. v. Vinson

• Decision Date: 04 July 1938
• Docket Number: 4-5144
• Parties: MISSOURI PACIFIC RAILROAD CO. v. VINSON
• Court: Arkansas Supreme Court

118 S.W.2d 672

196 Ark. 500

MISSOURI PACIFIC RAILROAD CO. v. VINSON

4-5144

Supreme Court of Arkansas

July 4, 1938

Appeal from Lawrence Circuit Court, Eastern District; S. M. Bone Judge; reversed.

Judgment reversed and cause dismissed.

Thomas B. Pryor, H. L. Ponder and H. L. Ponder, Jr., for appellant.

Richardson & Richardson, for appellee.

OPINION

GRIFFIN SMITH, C. J.

The question is, Was appellant negligent?

Appellee was an employee of the Railroad Company and was helping a fellow-servant stack crossties in a box car. Appellee was an experienced man . . . "and knew all about that kind of work."

In his testimony appellee said: "It was well lighted in the car and we were stacking the ties lengthwise, with two stacks at each end of the car. When I was injured we had already built the first stack up and were working on the second. We were stacking the ties almost to the ceiling, which is eight or nine feet high. Two men would take a tie, one on each end and one man would lift it and place it on top of the stack, and the other man would shove it back. The man standing next to the stack would be facing toward the stack and away from the man on the other end. The man on the other end would be facing the stack, too.

"George Sims, a colored man, was helping me, and was on the other end of the tie. . . . I was the man in front and lifted [the tie] up on the stack. I got almost to the top--and of course there was a strain on me trying to put it up there--and this colored boy gave it a shove. Of course, he thought I had it high enough, I guess, I don't know, and he gave a shove. This threw a strain on me and I lost balance and the tie came near falling on me. I had to stay with the tie to prevent this happening, and I felt a sharp pain in my side. I did not know beforehand just when he was going to shove. I supposed he would see whether the tie was high enough, or not. After I was hurt I went ahead and helped with another tie or two--I don't know just how many--but I had to quit, and I got on the opposite side of the car from where the two foremen were. I stayed there five or ten minutes and then went around and helped the boys who were loading the ties in the car to do this work. The man I helped to carry the ties on the outside was named Joe Faust. I did not make any complaint to the foreman or anyone else about being injured. . . . I reported back for work the next day and worked there raising track and tamping it. This is hard work, but it did not bother me any. After I was injured I worked between nine and thirteen days, and then I reported to Dr. Merrell. . . . [Later] I went to Dr. Brown and he told me I was ruptured."

On cross-examination the witness testified: "When I first went to [Dr. Merrell] I only complained of a pain in my chest and between my shoulders. I did not tell him I had been feeling bad for a few days and wanted some medicine, and I did not tell him I had been injured in any way. . . . I had been working inside that car nearly a whole day when I got hurt. . . . I had the tie raised up into the air, but it was not yet resting on the stack. The tie did not fall, but would have had I not held on to it. . . . I don't remember whether it dropped, or fell, or not. . . . The tie was raised up on my hands, but I did not have it quite high enough to clear the edge of the stack. . . . We never did get this tie on the stack until another boy came and helped us. . . . I just turned my end of the tie loose and let it go. I helped put up several ties after this. They might have been heavier or lighter--just the usual run of ties. . . . I have no knot or bulge on my left side, or...