Pine Bluff, Sheridan & Southern Railway Company v. Leatherwood
| Decision Date | 12 April 1915 |
| Docket Number | 306 |
| Citation | 175 S.W. 1184,117 Ark. 524 |
| Parties | PINE BLUFF, SHERIDAN & SOUTHERN RAILWAY COMPANY v. LEATHERWOOD |
| Court | Arkansas Supreme Court |
Appeal from Grant Circuit Court; W. H. Evans, Judge; affirmed.
Judgment affirmed.
W D. Brouse and John L. Hughes, for appellant.
1. This case falls within the rule that the servant assumes the usual and ordinary risks incident to his employment;. 41 Ark. 382 383; 104 Ark 489.
If the hose was attached in a defective manner, it was necessarily patent to the appellee, and he assumed the risk. 58 Ark. 125; 65 Ark. 98.
He was presumed to know of such dangers and risks as he had the opportunity to know of, and, having such opportunity, if he failed to inform himself, he can not recover for the resulting injury.
2. Both the superintendent and the engineer, who were men of long experience as locomotive engineers, had inspected the attachment, and thought it safe; and the engineer had inspected it every time he stopped, five or six times a day. This was certainly all the inspection that could be required because the defect in the appliance, if any, must have been such as a reasonably careful inspection would disclose. 20 Am. & Eng. Enc. of L. 90, and cases cited.
3. Instruction 7 was not the law of the case and was misleading and prejudicial. It was the duty of the court to construe the release, and to instruct the jury that if appellee signed it, he was bound by it and could not recover. 78 Ark. 574; 105 Ark. 213; 1 Greenleaf on Er. (16 ed.), § 277.
D. D. Glover, for appellee.
1. The connection was made by the engineer under the orders and directions of the superintendent before appellee went to work there. He knew nothing of its danger until he was injured. It is well settled that the servant does not assume the risk of dangers arising from or consequent upon the negligence of the master, but he has the right to assume, and act upon the presumption, that the master has exercised due care and diligence for his protection. 93 Ark. 93; 77 Ark. 367; Id. 463; 79 Ark. 53; 87 Ark. 396; 85 Ark. 503;89 Ark. 424; 95 Ark. 291; 90 Ark. 223; 98 Ark. 227.
2. If appellee signed the release it would not bar this action, because it shows on its face that it was for loss of time and damages arising therefrom, i.e., loss of time.
The questions, whether the appellee signed the release or not, and whether, if he signed, it was for loss of time only, and not for person, al injuries, were questions for the jury. 89 Ark. 368. It is when the terms of a written contract are undisputed that it is the province of the court to construe it. 101 Ark. 469.
This is an action instituted by appellee to recover damages on account of injuries received while working in the service of appellant as fireman on its railroad. There was a rubber hose attached to the injector pipe and appellee was using it for the purpose of wetting the coal in the tender so as to keep down the coal dust, and the hose, on account of the insecure connection with the pipe, would not stand the pressure, and blew off, causing a stream of hot water to be thrown against appellee's leg. He was severely scalded below the knee, and was confined to his house about ten days, suffering considerable pain in the meanwhile, and was incapacitated from work for a still longer period of time. Appellant's manager paid appellee the sum of $ 24, and introduced in evidence a contract in writing purporting to release the company from all liability for the injuries received. Appellee admitted that the sum of money named above was paid to him for thirteen days of his time lost after the injury, but denied that it was to cover any other elements of damage, or that he signed any writing of any kind or agreed to accept the sum in full compensation of all of his injuries. The case was tried before a jury and a verdict was rendered in appellee's favor assessing damages in the sum of $ 100.
It is insisted in the first place that the evidence was not sufficient to sustain the verdict in that there was no negligence proved, and that the appellee himself was guilty of negligence in failing to inspect the defective appliance which caused his injury. It appears from the evidence that the piece of hose was about four feet long and was connected with the pipe back under the side of the engine at an inconspicuous place. The piece of hose was attached for use especially in watering the coal in the tender so as to keep the coal dust from flying. The engineer applied to his superior for a piece of hose and a clamp with which to attach it to the pipe, and when it was furnished to him, the clamp was too large. The manager told the engineer to put in an additional strip of rubber so as to make the connection secure, and the evidence adduced by appellant tends to show that the engineer frequently inspected the connection, and that there was no negligence in leaving it in that condition. We think there was enough evidence to warrant the inference that there was negligence in the manner in which the hose was attached. It is conceded that the clamp was too large, and the jury might properly have found that there was negligence in using that kind of a clamp, or that there was insufficient stripping to make the hose large enough to fit the clamp. The defect was, too, of such a character as to warrant the inference that there was negligence in not making proper inspection to discover its condition. The engineer testified that he made frequent inspections, but the jury might have found that his inspections were not sufficiently searching and accurate to discover the defect. The duty devolved upon the master to exercise ordinary care to make this appliance reasonably safe for the use intended. It can not be said that the appliance was solely for the personal use and convenience of the engineer and fireman, though it is true that it added to their comfort in keeping down the coal dust. It was, after all, one of the appliances about the engine which was considered necessary in the performance of the duties of the servants in charge of the engine. Nor can it be said that the defect was such an obvious one that the appellee was bound to lake notice of its condition. The duty of inspection was that of the master, and the appellee, as fireman, was not bound to search for hidden defects, but was only compelled to take notice of those which were open to observation. We think the evidence was sufficient, and that the verdict ought not to be set aside on that ground.
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