St. Louis, I. M. & S. R. Co. v. Wirbel

• Decision Date: 09 June 1913
• Citation: St. Louis, I. M. & S. R. Co. v. Wirbel, 158 S.W. 118, 108 Ark. 437 (Ark. 1913)
• Parties: ST. LOUIS, I. M. & S. R. CO. v. WIRBEL.
• Court: Arkansas Supreme Court

158 S.W. 118

ST. LOUIS, I. M. & S. R. CO. v. WIRBEL.

Supreme Court of Arkansas.

June 9, 1913.

Appeal from Circuit Court, Desha County; H. W. Wells, Judge.

Action by Harry Wirbel, by his next friend, Amelia Wirbel, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. B. Kinsworthy and T. D. Crawford, both of Little Rock, and J. C. Knox, of Monticello, for appellant. C. P. Harnwell, of Little Rock, for appellee.

HART, J.

Appellant prosecutes this appeal to reverse a judgment rendered against it in favor of appellee for damages for personal injuries alleged to have been sustained by him by reason of the negligence of the appellant. This is the second appeal in the case. The opinion on the former appeal is reported in 149 S. W. 92, under the style of the St. Louis, Iron Mountain & Sou. Ry. Co. v. Wirbel.

On the 15th day of December, 1909, Harry Wirbel went to the office of the master mechanic of the appellant's line of railway at McGehee, Ark., for the purpose of securing employment as a locomotive fireman. The office of the master mechanic was situated in the yards of the company, and the person in charge of the office directed Wirbel to seek the master mechanic in the yards. Wirbel went out into the yards, and went down a path running by the coal chute. He saw a door open there, and asked the man who was running the machine if he had seen the master mechanic. About that time the coal hoisting machinery broke, and Wirbel was severely injured thereby.

The evidence adduced in his behalf tends to show that the machinery was defective, and that appellant had been advised of that fact. R. McCuen testified that he worked for appellant in the capacity of engineer and coal chute fireman at McGehee during the latter part of October and November, 1909. He said that the master mechanic hired the fireman, and that he was hired in the yard; that he did not know whether or not it was the custom of the master mechanic to hire firemen in the yards or in his office. Joseph Paffe was the engineer and fireman in charge of the coal hoisting machinery at the time Wirbel was injured, and had been so employed for about 15 days. His deposition, taken on interrogatories and cross-interrogatories, was read in evidence at the trial. We copy from his direct examination the following: "Q. Do you know whether or not the master mechanic was in the habit of transacting business outside of his office and in the yards of the company at McGehee? A. Yes; the master mechanic did transact all kinds of business outside of his office and in the yards at McGehee. As a matter of fact, he was in the yard a great part of the time and transacted the greater part of his business, and that fact was generally known and acted upon. Q. Was the master mechanic, or any other official of the company, hiring firemen at McGehee during the month of December, 1909, or at any other time or times? (Objected to by counsel for defendant on the ground that the witness has not shown that he was qualified to answer this question. The objection was overruled by the court and the defendant, at the time, duly saved its exceptions.) A. Yes; the master mechanic was hiring firemen at McGehee in December, 1909, and both previous to and subsequent to December 15, 1909. That was part of his business, and he hired them in his office, in the yard, or anywhere else he saw them." On cross-examination he was asked: "Q. Did you ever see the master mechanic employ locomotive firemen in the railway company's yards, outside of his office? A. No; I never saw him hire anybody. (Here counsel for defendant renewed his...