St. Louis, Iron Mountain & Southern Railway Company And Virginia Bridge & Iron Company v. Yates

• Decision Date: 16 February 1914
• Citation: 165 S.W. 282,111 Ark. 486
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY AND VIRGINIA BRIDGE & IRON COMPANY v. YATES
• Court: Arkansas Supreme Court

165 S.W. 282

111 Ark. 486

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY AND VIRGINIA BRIDGE & IRON COMPANY v. YATES

Supreme Court of Arkansas

February 16, 1914

[Copyrighted Material Omitted]

Appeal from White Circuit Court; Joseph M. Stayton, Special Judge reversed as to Bridge and Iron Company; affirmed as to Railway Company.

STATEMENT BY THE COURT.

The complaint in this cause alleged that the plaintiff, Richard A. Yates, was employed by the St. Louis, Iron Mountain & Southern Railway Company on the 11th day of April, 1912; that the said railway company had employed the defendant, Virginia Bridge & Iron Company to do certain construction work in building a bridge, near Judsonia, Arkansas, and that the plaintiff was employed by the said railway company at the sum of $ 2.65 per day to work as a carpenter upon said bridge and he was ordered and sent by the foreman, in charge of the work for the said railway company, to go to a gearing pit and do certain work there, and that while he was so engaged in the discharge of his duty, and in the exercise of due care the agents and employees of the said defendants, Virginia Bridge & Iron Company, and the St. Louis, Iron Mountain & Southern Railway Company, knowingly, negligently, carelessly and without warning, started the machinery in motion and caused a cog wheel about which the plaintiff was working to revolve with great rapidity, and caught the plaintiff's foot in these wheels and so mangled it that it had to be amputated. He prayed judgment in the sum of $ 25,000. The railway company answered and denied all the material allegations of the complaint, and alleged that plaintiff's injury was caused by his own contributory negligence. The defendant bridge company, in its answer, denied all the material allegations of the complaint, and alleged that the plaintiff's injury was caused by his own contributory negligence, and denied plaintiff was injured by reason of any machinery either negligently or carelessly started by any servant in its employ.

The service of summons was shown to have been had upon the Virginia Bridge Company, and a motion to quash the summons was filed upon that account. Proof was offered upon this motion to the effect that there was no such corporation as the Virginia Bridge Company, and that service had, in fact, been had upon the agent of the Virginia Bridge & Iron Company; and that that company had prepared for trial. The court overruled the motion to quash the summons, and permitted the sheriff to amend his return, showing that proper service had been had, and we think he committed no error in so holding; but we do not set out in detail the evidence heard by the court on this motion, which covers many pages of the record in this case, because, for reasons which will be hereafter stated, we do not think there is any liability on the part of the bridge company, and we have for that reason dismissed the cause as to it.

The evidence in the cause shows that the railroad company had purchased from the bridge company the material with which to construct a bridge across Little Red River near Judsonia, Arkansas, and that the contract for its construction had been let to the Kansas City Construction Company, a separate corporation, and that the bridge had been completed and examined by the engineers representing the railway company, and accepted by them. But it was found that certain machinery in connection with the bridge did not work properly, and the bridge company was notified of that fact, and requested to send an expert to the scene to put the bridge in proper shape. In response to this request, the bridge company sent a Mr. Claus, who testified that he was paid by the Virginia Bridge & Iron Company for his services, and that he was sent by that company with directions to report to the railroad company upon his arrival, and that he reported to the chief engineer of the railroad company who told him to go ahead with the work and to test out certain machinery, and to put it in proper working condition; and he testified that he was working under the directions of the railroad company, and could do nothing without their authority. It appears that while the bridge company paid the wages of Claus, and two men employed by him, that an account was kept of these sums, and the same was charged back to the railroad company.

The facts in regard to the injury of appellee are substantially as follows:

The bridge did not operate satisfactorily in this, that the wedges at the end of the bridge which had to be pulled, when the bridge was turned, and had to be driven back after the bridge was replaced, were both difficult to pull in the first instance, and to drive back in the second, so that trains were often delayed and the traffic at times congested.

The evidence further shows that at the center of the bridge, and over and above the structure there, and under which the trains were operated, there was a tower, the window of which was twenty-six feet above the base of the bridge; that in the tower is located the machinery which, when set in operation, pulls and drives the wedges at either end of the bridge; that the bridge was 260 feet long and that it was 130 feet south of the pit in which appellee was working at the time he was injured; and that it was impossible for one located in the tower where Mr. Claus was, at the time he set the machinery in motion, to see a person in or about the pit where the appellee was, and that Mr. Claus had been at work on the bridge pulling and driving the wedges many times every day since some time in February, and that during all this time no one had ever gone into the pit at either end of the bridge, except Mr. Claus and the two men working under him. During this time Mr. Claus went into the pit when it was necessary for the purpose of cleaning, greasing and adjusting the machinery, which was in the pit, and which was a part of the machinery for drawing and driving the wedges; that during this time the pit had remained uncovered, that is, it had no top or covering over the machinery in this pit, and it had no floor underneath; that until the work which Mr. Claus was to do had been completed, he and the two men working under him found it necessary to go into this pit almost daily, and for this reason it had been more convenient not to have any covering over the pit, and Claus testified that he did not know it would be covered until he had finished the work of adjusting the machinery.

P. C. White testified that he was the foreman of the gang, and that appellee was employed under him as a bridge carpenter, and that he had directed him and another employee to go into the pit and take certain measurements, which were necessary to be made in order to make a covering for the pit. That there was one pit at the north end of the bridge, and another at the south end, and that in order for the men to perform this work it was proper for them to go into the pit, and it was the natural place for them to go. That the measurements could have been taken without going into the pit, but that they could get them better in the pit. That after he put Yates and Boyer in the pit at the north end of the bridge, he put two other men to work in the pit at the south end of the bridge, and that altogether, there were about twenty men at work on the bridge.

A witness named A. Bunch testified that at the time Yates was injured, "I was about fifty feet from him, and was putting down guard rails. There was no warning given that the machinery was going to start. It had been customary to give signals or warnings prior to the time they were going to start the machinery. I do not know whose business it was to give that warning. There was a man there who gave signals; his name is Harvey Blaylock. He gave me warning one time. I understood from Blaylock he was there for the purpose of giving signals, when the machinery was about to be turned. He did not say he would give me the signals, but that he give Claus signals when to start." And the witness further testified:

Q. And you say that up to this time, when you workmen were working around the place of danger, that Blaylock had been giving signals to Claus, the man that set this machinery in motion, when it was safe to start it?

A. I know that he has done it. Blaylock was where he could give Claus signals, when to start and stop the machinery.

Q. Was not the purpose of Blaylock's giving these signals to guard against having the bridge in a condition that it was not safe to receive trains?

A. I do not know.

Q. Then you do not know whether that was his purpose there or not?

A. That was one of his purposes. That is not the only danger; there are other cogs; they are all under the bridge; none of them are on top where we were working; we had not been under the bridge, and were above the danger. There was danger working around the shoes on top of the bridge.

Q. If the engine was not running, there would be no danger?

A. The machinery does not move every time the engine runs.

Q. But if the engine was not running, there would be no danger?

A. No, sir.

A. W. Boyer testified that under the directions of Mr. White, foreman, he was assisting appellee in putting in a platform over the cog wheels on the bridge, and they had been working some four or five minutes when the accident happened. They were taking measurements of the timbers, and were in the pit performing, this work, which was the proper place for them to be. That Yates got through first, and was coming over to help the witness, and the machinery was not running at that time, and that just as Yates stepped on the cog wheels, the wheels turned and caught his leg. The witness was asked this question:

Q. From where he was, could he have gotten over...