Nebraska Bridge Supply & Lumber Co. v. Jeffery
| Decision Date | 26 April 1909 |
| Docket Number | 2,832. |
| Citation | 169 F. 609 |
| Parties | NEBRASKA BRIDGE SUPPLY & LUMBER CO. v. JEFFERY. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles C. Collins (G. Otis Bogle and Thomas & Lee, on the brief) for plaintiff in error.
G. L Grant and W. A. Oldfield (R. E. Jeffery and Charles F. Cole on the brief), for defendant in error.
Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.
This is a writ of error to the Circuit Court for the Eastern District of Arkansas. The action was brought in the state court and removed to the Circuit Court by the plaintiff in error hereafter called the 'Bridge Company,' where a trial was had resulting in a verdict for the defendant in error, hereafter called the 'plaintiff.'
The record discloses the following facts: That in July, 1907, the Bridge Company had a contract with the St. Louis, Iron Mountain & Southern Railway Company to deliver to the Railroad Company at Cotter, Ark., and other points along its line of railroad, certain piling and other timber; that on the 17th of July, 1907, the Bridge Company was loading piling on the cars at Cotter, Ark.; that the plaintiff was in the employ of the railroad company as a lumber inspector, and was, by direction of his employer, at Cotter, on the day above mentioned, for the purpose of inspecting the piling then being loaded on a flat car by the Bridge Company; but the piling was loaded by means of a rope and skids; that the skids extended from the ground to the platform of the car, one end of the rope being fastened to a stake in the side of the car opposite the place where the pilings were located on the ground; the rope was then passed around the piling desired to be loaded, the loose end of the rope passed back over the car, a horse or team hitched thereto, and then started, and by this means the pile was rolled up these skids onto the car; that, as the piece of piling was being rolled up on the skids, there was a man stationed at either end for the purpose of keeping it straight; that when the car was about one-half loaded, and when a piece of piling was partway up on the skids, the rope, which was seven-eighths of an inch in diameter, broke, causing the piece of piling to roll back rapidly to the ground; that there were a number of these piling timbers at the place where this loading was going on at the time the rope broke, causing the piece of timber on the skids to roll back, and plaintiff was standing on the pile of timbers then on the ground and near the center thereof; that the timbers were 18, 16, and 14 feet in length; that back of the pile of logs upon which plaintiff was standing was a mud hole 6 or 7 feet wide, and for that reason plaintiff claimed that he was obliged to go upon the timbers for the purpose of inspecting them; that the instant the rope broke some one called out, 'Look Out.' that the plaintiff attempted to get out of the way, but before he could do so was caught by the log and his heel and ankle injured.
There is some evidence in the record tending to show that Mr. Wolf, who had charge of loading these pilings on the car for the Bridge Company, cautioned the men, in the presence of Mr. Jeffery, to be on the lookout, as there was danger of a skid slipping or something happening by which they might be injured.
The evidence offers no explanation of the cause of the parting of the rope. It does show, however, that the rope had been recently purchased, and had only been used on one occasion prior to this time, and then for the purpose of securing a raft of logs in the river; that it was a manila rope, and at the time it was purchased was carefully inspected; that it was of the size usual for the purpose for which it was then used, and was apparently in good condition.
The court gave the jury the following instruction:
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