Sanders v. Missouri Pac. R. Co.

• Decision Date: 24 May 1937
• Docket Number: No. 4-4664.,4-4664.
• Parties: SANDERS v. MISSOURI PAC. R. CO. et al.
• Court: Arkansas Supreme Court

106 S.W.2d 177

SANDERS v. MISSOURI PAC. R. CO. et al.

No. 4-4664.

Supreme Court of Arkansas.

May 24, 1937.

Rehearing Denied June 28, 1937.

Appeal from Circuit Court, Independence County; S. M. Bone, Judge.

Action by J. W. Sanders against the Missouri Pac. Railroad Company, Guy A. Thompson, trustee. Judgment for defendant, and plaintiff appeals.

Reversed and remanded for new trial.

Griffin & Griffin, of Little Rock, and J. Paul Ward, of Batesville, for appellant.

Thos. B. Pryor, of Fort Smith, and H. L. Ponder, Jr., and H. L. Ponder, both of Walnut Ridge, for appellee.

GRIFFIN SMITH, Chief Justice.

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 1 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 14 feet from the ground. He was standing on a...