St. Louis, Iron Mountain & Southern Railway Company v. Baker
| Citation | 140 S.W. 14,100 Ark. 156 |
| Parties | ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BAKER |
| Decision Date | 03 July 1911 |
| Court | Supreme Court of Arkansas |
[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.
STATEMENT BY THE COURT.
This is a suit brought by appellee against appellant to recover damages on account of fatal injuries received by G. E. Baker while working in the boiler shop of appellant in the city of Argenta. Baker was employed by appellant as a carpenter, and, in company with a fellow workman named Vernon, was sent to make some repairs on the windows of the boiler shop. The boiler shop is a high room, with a row of windows around it 22 feet from the ground. There are two electric cranes in the shop, a large one in a larger room of the shop, and a small one in a smaller room, separated by a row of pillars. The larger crane is used for picking up and carrying heavy boilers and machinery. The smaller crane was used for picking up smaller machinery. It consists of a heavy beam running across the room and resting at each end on trucks, which run upon a track about two feet below the row of windows above referred to. suspended from the beam are hooks and other appliances used for taking hold of large sheets of boiler iron and other things which the workmen in the shop may desire to have moved for them from one machine to the other. The crane is so arranged that when the load is thus attached it is left clear of the heads of the men on the floor and carried and deposited wherever desired by the workmen. The crane operator sits in a cage about fifteen feet from the floor at one end of the room and controls the movements of the crane and the hooks by means of levers. Baker and Vernon had been engaged for some time about various other buildings of the shops and about this building making repairs to doors and windows wherever needed. They were under a foreman named Waits, who gave them instructions from time to time to do necessary work of repairing the building, such as windows, doors, etc., and instructed them to repair this particular window mechanically. On the forenoon of the day Baker was injured, at about 11 o'clock, they went up to the boiler shop to examine the windows, with a view to repairing any defects that might be discovered. They examined the windows from the ground below, and saw that the sill of one near the middle needed repairs. They went up on the outside of the building to the window, examined the defects, and determined what material they would need to make the repairs. They placed their order for the mill work and went away. Along in the afternoon, between 3 and 4 o'clock, they returned to do the work. They approached the boiler shop from the side where their ladder was set up and went up to the window. While there they decided that it would be necessary for them to get up on the crane tracks in order to do the work. They di not, at any time, notify any one, the crane operator or any one else connected with the company, or the management of the crane, that they were going to do the work in this manner. They went out on the track and began to work on the window sash, which was hung on a pivot and had to be removed in order to make the repairs. They passed a rope around it to keep it from falling when they knocked out the pivots. While so doing, the crane trucks were moved towards them by the crane operator. They were not observing the movement of the trucks, nor was the crane operator observing them, so the trucks came in contact with them, and so injured Baker that he shortly afterwards died.
This suit was brought by Mrs. Baker, his wife, as administratrix, for damages to his estate and the next of kin. the negligence charged in the complaint is that the servants and employees of defendant "operating and in charge of said crane, without warning of any kind, recklessly, negligently and carelessly ran said crane to the place where said intestate was working and against said intestate with such force and violence as to jam him against the brick wall of said building that supported the window frames; that it did not furnish her intestate with a safe place to work; that if failed to keep a lookout for him; that it did not have its crane properly equipped with a signal gong to warn persons in danger of the approach of said crane." The defendant answered, denying the allegations of the complaint and set up, affirmatively, the defenses of assumed risk and contributory negligence.
The court, in its instruction numbered 1, given at the request of the appellee, in effect told the jury that, if the defendant "negligently run or permitted its crane to be run, against Baker, thereby injuring him, from the results of which injuries he died, without giving him any warning or signal of its approach, your verdict should be for the plaintiff." And the court refused the prayers of appellant, in effect telling the jury that it was the duty of Baker, under the facts and circumstances of this case, to give notice to the crane operator that he was going to occupy the crane tracks while making repairs on the windows. And the court permitted argument of counsel on behalf of appellee to the effect "that it was the duty of foreman Waits of the bridge and building department to have notified Stevens, the master mechanic, and that it was then the duty of Stevens to have notified Elkins, the foreman of the boiler shops, and that it was then the duty of Elkins to have notified Maxey, the crane operator, of the presence of the deceased on defendant's crane tracks while he was repairing the window, and that the failure of these agents to so act was negligence on the part of the defendant for which the defendant was liable in this case."
There was a verdict in favor of the appellee for the benefit of the estate in the sum of $ 1,000 and for the widow and next of kin in the sum of $ 9,000. Judgment was rendered against the appellant for these sums, and to reverse that judgment this appeal has been duly prosecuted. Other facts are stated in the opinion.
Judgment reversed and cause remanded.
W. E. Hemingway, E. B. Kinsworthy, Powell & Taylor and James H Stevenson, for appellant.
1. The court erred in refusing to give an instruction requested by appellant to the effect that if the jury should find from the evidence that deceased went upon the crane track, that it was obviously dangerous for him to do so, and that he failed to notify the crane operator of his presence upon the track, then deceased was guilty of contributory negligence, and their verdict should be for the defendant. 76 A. 865; 71 Minn. 150, 154, 73 N.W. 217; 63 N.Y.S. 290, 49 A.D. 408; 150 Mass. 422, 23 N.E. 220; 110 Ala. 266; 96 Va. 430, 31 S.E. 694; 99 Ga. 111; 167 Mass. 52, 44 N.E. 1075.
2. Under the evidence in the case, it was not the duty of appellant to instruct the deceased as to where he should stand when attempting to do the work, nor was it appellant's duty to instruct him as to any obvious or patent dangers to which he might be exposed while doing the work. Deceased assumed these risks when he undertook to do the work. If, having sufficient intelligence to enable him to see and appreciate the dangers to which he was exposing himself, he knowingly undertook, while engaged in the work assigned to him by the foreman, to occupy a place of danger,although he may have deemed it necessary to do so while engaged in this particular work, he assumed the risks incident thereto, and thereby dispensed with any obligation on the part of the appellant to furnish him with a better place. It was not, under the facts of this case, for the jury to determine whether the place occupied by deceased at the time of receiving the injury could, with reasonable care on the part of appellant, have been made safe. 1 Labatt, Master and Servant, § 26; 117 Mo. 405, 412, 22 S.W. 1081; 90 Ga. 491, 16 S.E. 212.
3. The fact that other cranes in the shops were equipped with bells or signals does not warrant the conclusion that appellant was negligent in failing to place a signal on this particular crane, and deceased had no right to assume that, because other cranes were equipped with signals, this one was likewise equipped. It was Baker's duty, before placing himself on the crane track, to use ordinary care to ascertain whether the crane was equipped with a signal and how it was used in the operation of the crane, 1 Labatt, Master and Servant, § 264; Id. § 35; Id. § 38; 168 Mass. 408, 47 N.E. 111; 90 Ark. 145; 92 Ark. 138; 76 A. 866.
The undisputed evidence clearly shows that deceased assumed the risk, and that he was guilty of contributory negligence, while it fails to show any negligence on the part of appellant, or an legal liability on its part. 76 A. 866.
B. D. Brickhouse and Bradshaw, Rhoton & Helm, for appellee.
1. The court properly refused to give the second instruction requested by appellant, because it was not responsive to the evidence. There is no evidence in the record to the effect that the place was either obviously dangerous or dangerous at all.
It appears from the evidence that Vernon and Baker were especially instructed on this particular day to do this piece of work. Under the McCafferty case, 76 A. 865, relied on by appellant, it was under the duty to exercise ordinary care to protect them from other dangers while there. If notice to others of the dangerous situation was necessary for the protection of Vernon and Baker, appellant was bound to give it; and if the operator was not informed in some way, then the failure of appellant to inform him was the proximate cause of the injury, for which it is liable.
2. Deceased did not assume any risk growing out of the defendant's...
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