St. Louis, Iron Mountain & Southern Railway Co. v. Andrews

• Decision Date: 25 June 1906
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. ANDREWS
• Court: Arkansas Supreme Court

96 S.W. 183

79 Ark. 437

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. ANDREWS

Supreme Court of Arkansas

June 25, 1906

Appeal from Lonoke Circuit Court; George M. Chapline, Judge reversed.

Judgment reversed and cause remanded.

B. S Johnson and J. E. Williams, for appellant.

There is no testimony in the record legally sufficient to sustain the verdict. The burden was upon the plaintiff throughout to make out his case by a preponderance of the evidence, first that he received his injuries by the accident of which he complains; second, that it occurred by reason of some defect in the ladder he was using; and, third, that this defect was known to defendant, or that its ignorance was due to negligence in failing to inspect or exercise proper care. In neither event is there any presumption against the company, but, on the contrary, the presumption is that it has done its duty in the matter of appliances furnished; and when that is overcome by proof that they were defective the further presumption arises that it had no notice of the defect, and was not negligently ignorant of it. 51 Ark. 468; 46 Ark. 555; 84 S.W. 797; 44 Ark. 529.

J. H. Harrod and Trimble, Robinson & Trimble, for appellee.

Review the testimony and contend that the evidence shows that the ladder was defective; that the defect was unknown to plaintiff; that it was known to the defendant, or should have been known by it in the exercise of reasonable care; and the defect caused plaintiff's injuries. The evidence was legally sufficient to sustain the verdict.

OPINION

MCCULLOCH, J.

The plaintiff, J. B. Andrews, was employed by the defendant, St. Louis, Iron Mountain & Southern Railway Company, as assistant pump repairer, and sues to recover damages on account of an injury he received in falling from a ladder which he was descending on the side of a water tank. He was instructed by his superior to change the valves in the tank, and in doing so it became necessary to ascend the ladder to the top and go down to the bottom of the tank. After discharging all the water from the tank, he and his helper went into it and changed the valves, and when he started down the ladder on the outside the third round of the ladder from the top gave way under his handhold, and he fell to the ground, a distance of about 36 feet, and was seriously injured.

The plaintiff, on the witness stand, described the occurrence, after receiving instructions to take his helper and change the valves of the tank, as follows: "I went over and got my tool sack, and changed my clothes, and we went up on top of the tank; then went down to the bottom, and took out the old valve, and put in a new one. After we were through, I picked up my tool sack in my left hand, and started down. The third round pulled off, and I fell between 30 and 36 feet. I remember being in the air with a piece of the round in my right hand. Don't remember hitting the ground. The first I remember was when they had me over at the hospital." He introduced no evidence as to the condition of the ladder at the time of the injury, but rested the case up his own statement as above quoted.

The defendant introduced as a witness R. F. Cook, foreman of the water department, who was the plaintiff's immediate superior, and he testified as to the condition of the ladder. He said that he went up this ladder on the same day and a short time before plaintiff's injury, and found it in good condition, and that he caused the ladder to be removed about two weeks later and that the timbers were perfectly sound and in good condition except that the third round or step from the top had been pulled off, and also that the two bottom steps were off. He explained that the steps of the ladder were mitred into the supports or side-beams, as well as nailed, and that he ascertained from examination of the ladder immediately after plaintiff's injury that where the step which had been pulled off under plaintiff's grasp joined the side-beam or support, the lower side of the mitre joint was split out, showing a fresh break. The ladder had been in use about four years.

The complaint alleges that the step of the ladder was rotten, dangerous and unsafe, and that the defendant was guilty of negligence in not keeping the same in safe condition, so as to furnish the plaintiff, its servant, a "safe place in which to work." This allegation was denied, and the case was put to the jury upon this issue and under correct and appropriate instructions.

Does the evidence warrant a finding of negligence on the part of the defendant in failing to furnish its servant a safe place in which to work.? The law of the case is plain. It is the...