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

• Decision Date: 24 November 1913
• Citation: 163 S.W. 152,110 Ark. 241
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BAKER
• Court: Arkansas Supreme Court

163 S.W. 152

110 Ark. 241

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

Supreme Court of Arkansas

November 24, 1913

Appeal from Saline Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

E. B Kinsworthy, H. S. Powell and T. D. Crawford, for appellant.

1. The exceptions to the general rule making it the duty of the master to furnish the servant a safe place to work are as well-established as the rule itself. The duty does not apply where the work is making a dangerous place safe; where the work itself makes the place unsafe or dangerous; where the character of the place for safety is constantly changing as the work progresses as the direct result of the servant's labor. 1 Bailey on Personal Injuries, § 81. For exceptions to the general rule devolving the master's duty upon the servant himself, see 100 Ark. 634; 93 Id. 140; 96 Id. 206; 76 Id. 68; 88 Id. 292; 78 Id. 213; 95 Id. 291; 97 Id. 486; 95 Id. 560; 101 Id 201; 71 Id. 159. Here the servant assumed all the risks. Cases supra. 76 A. 865; 3 Labatt, M. & S. §§ 953, 954. Volenti non fit injuria. Elliott on R. R., § 1298a; 4 Thompson, Negl., §§ 3876-7-9; 1 White, Pers. Inj., § 257.

2. It is always objectionable to single out and thus emphasize an isolated fact. 75 Ark. 76; 76 A. 869.

3. There was no proof of what deceased's expectancy of life was. Plaintiff should have shown this and his earnings and the pecuniary benefit the next of kin had a reasonable expectation of receiving if deceased had lived. 51 Ark. 515.

4. The argument of the attorney for plaintiff was improper, misleading and prejudicial. 61 Ark. 130; 106 Ark. 362.

5. The injury was the result of deceased's own negligence. 76 A. 866; 179 F. 1016; 3 Labatt, M. & S., § 1252; 76 A. 865.

6. This case is fully developed and "there should be an end to litigation." The cause should be dismissed. 105 Ark. 290; 105 Ark. 258.

Bradshaw, Rhoton & Helm, Mehaffy, Reid & Mehaffy and Ben D. Brickhouse, for appellee.

1. On entering the master's service, the servant does not assume the risk of dangers arising from the negligence of the master unless he has knowledge of such negligence and appreciates the dangers arising therefrom. In the absence of such knowledge, the servant has the right to rely upon the assumption that the master has performed his duty not to involve the servant in extraordinary hazards. 95 Ark. 295, and cases cited; 56 Ark. 206; 58 Ark. 66; 65 Ark. 138.

2. Under the testimony, it was clearly Wait's duty to notify proper persons in charge of the crane, or in the boiler shop, of the presence of the deceased while making repairs on the window. 85 Ark. 506; 100 Ark. 156; 76 A. 866; 179 F. 1017.

3. The evidence presents a situation where the question of contributory negligence was one where the minds of reasonable men might differ in their conclusions; hence it was proper to submit it to the jury. The court could not, in view of the evidence, declare, as a matter of law, that deceased was guilty of contributory negligence. 101 Ark. 424; 100 Ark. 53; 93 Ark. 93; 1 Labatt, Master and Servant, § 293; 100 Ark. 465; 101 Ark. 197; 99 Ark. 377.

4. Mere expressions of opinion by an attorney in argument to the jury will not be held as prejudicial. 93 Ark. 564.

OPINION

WOOD, J.

This is the second appeal in this case. The issues and facts on the first appeal are fully stated in St. Louis, I. M. & S. Ry. Co. v. Baker, 100 Ark. 156, 140 S.W. 14. The facts in the present record are substantially the same as they were on the first appeal, except that the present record shows that Vernon testified, in part, on the last trial, as follows:

Our foreman was Mr. Waits. He had instructed us to do the work mechanically. There was no other way to do the work mechanically than by going in on the crane rail and doing the work as we did it. We were to let the window down with a rope. He went over to the B. & B. shop and got the rope. When I was over there, I saw Mr. Waits. He asked us how we were getting along. I told him that we were getting along all right, and that we had to go up on the inside on that crane rail to take the sash out. He wanted to know when we would be back there, and I told him in about twenty minutes. It was something like thirty minutes before we went back there.

In our opinion on the first appeal, we said: "The uncontradicted evidence shows that Vernon and Baker themselves did not know that it was necessary to occupy the crane tracks in order to repair this window in a mechanical way until they had gone up from the outside and examined the same. It was only after investigation that they themselves determined that it was necessary to go on the inside and stand on the crane tracks while doing the work. This duty, under the uncontroverted evidence, was delegated to them, and when they ascertained that it was necessary to occupy the crane tracks, which placed them in a place of obvious danger while performing their work, they should have notified their foreman, Waits, of that fact, so that he might see that the necessary notice was communicated to the crane operator. The appellant undoubtedly would have been liable had Waits been notified by Vernon and Baker that, in repairing the window, it would be necessary for them to stand on the crane tracks." And further: "Waits, the foreman of Baker, was not chargeable with knowledge of the manner in which the window should be repaired, and of the place where it was necessary for Vernon and Baker to stand in order to do the work, in the absence of notice from them of these facts, when the very duty of obtaining that knowledge and of communicating the same to Waits was imposed upon them."

The proximate cause of the death of Baker was the absence of notice to the crane operator that Baker was going to occupy the crane track while engaged in the work of repairing the window. The appellant contended on the former appeal that the undisputed evidence showed that Vernon and Baker failed to notify the crane operator that it was necessary for them to stand on the crane tracks while repairing the window; that it was Baker's duty to have done so, and that having failed, he was guilty of contributory negligence, and, likewise, that he assumed the risk. The appellee, on the other hand, contended that it was Waits' duty to have notified the crane operator that Baker would be on the crane track while the window was being repaired.

The language of the former opinion, above quoted, was used while discussing the issue thus presented. True, the court held that there was no testimony to support the appellee's contention, and sustained the contention of the appellant; but the language of the opinion above quoted was, at least, germane to the discussion of the issues under consideration, and, even if obiter, the doctrine announced was sound.

The testimony of Vernon on the trial tended to establish the fact that Waits received notice that Vernon and Baker would have to stand on the crane tracks in order to do the work Waits had directed them to do, and that he was notified of the time, approximately, when they would be there. Counsel for appellant suggest that a strong suspicion arises that this testimony of Vernon was manufactured to fit the opinion of the Supreme Court. Vernon testified that the reason he did not give such testimony on the former trial was that a question calculated to elicit the information was not asked by counsel on either side. At any rate, he gives an explanation why the facts shown by his present testimony were not developed at the former hearing, and the jury must have regarded it as a reasonable and truthful explanation, for their verdict shows that they accepted his testimony. It was a matter peculiarly pertaining to the credibility of the witness, and was for the jury to settle. This testimony then, warranted the jury in finding that appellant's foreman knew that Vernon and Baker were going upon the crane tracks in obedience to his order to repair the window. He knew the place where they would stand, and the time when they would be at that place; yet he permitted them to occupy this dangerous position without notifying the crane operator of their presence and peril so that the latter might protect them. This testimony takes the case out of the doctrine of those cases where the master delegates to the servant the duty of making his place of work safe, or where the work itself renders the place unsafe, or where the character of the place for safety is constantly changing as the work progresses as the direct result of the servant's...