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

• Decision Date: 10 May 1909
• Citation: 119 S.W. 277,90 Ark. 387
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GOINS
• Court: Arkansas Supreme Court

119 S.W. 277

90 Ark. 387

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

Supreme Court of Arkansas

May 10, 1909

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge reversed.

STATEMENT BY THE COURT.

J. A Goins, appellee, was employed as a machinist's helper by appellant in its round house at Van Buren. An engine had been placed over a pit in one of the stalls in the round house and the boilers of the engines were washed over these pits in the stalls. As a result of this washing, the ground about the pits was made wet, and in order to drain the water from the ground into the pits, what is referred to in the record as a "ditch" or as the "bevelling" of the ground was made along and next to the sill upon which the rails were laid upon which the engines rested, and holes were bored in this sill to enable the water more freely to pass into the pit.

Goins was called to assist a machinist in taking off and replacing a cylinder head upon an engine during the forenoon, and while engaged in assisting in lifting the cylinder head back to its position Goins's foot slipped, and his back was wrenched and severely injured. He sued appellant for damages, alleging "that the defendant permitted a small drain or ditch to be dug, opened and created near the sill of the right hand side of said pit for the purpose of draining off water that was accumulating upon the floor in said round house or machine shop; that the water in said ditch or drain caused the ground in and about and upon which he was required to stand and work to become soft, slippery and slick, so that it would not support and sustain plaintiff upon his feet while in the discharge of his duties toward defendant; that by reason of said negligence plaintiff says his feet were caused to slip from under him into said ditch or drain, and bring about and produce the injuries as herein complained of."

Appellant filed answer, denying each and every allegation of the complaint, and interposed the special pleas of contributory negligence of the appellee and the assumption by him of the risk of injury from the conditions as they existed.

It was eleven o'clock in the morning when appellee was injured. He was thirty-four years of age, had been employed for several months as helper to the machinist, and the business required him to help lift machinery that was very heavy. The cylinder head he was helping to lift weighed about two hundred pounds. It required all the strength appellee had to lift it. The foreman, whose orders he had to obey, had directed appellee "to help put the cylinder head on the engine, and said it was a hurry-up order and had to be done quick." He had to go in a hurry; did not know of the presence of the train at the time he was injured. His work required him to give it his closest attention, and his attention was on his work at the time he went to lift the cylinder head. He was right up next to the cylinder. There was no other place that he could have gone to in order to get down to the work. The drain was a slope five or six inches deep. He had not seen the condition of the ground before receiving his injuries; noticed a little water that had run off when they washed out the boiler that morning, but did not know that the ground was wet and slippery at the time he went there, never noticed it before he slipped; had it not been for the ditch, his foot would not have slipped. When he first went there, he helped the machinist take the cylinder head off. He had been working around there about twenty minutes before he was hurt, within from two to six feet of the place where he went to help lift the cylinder head. When he was not hurried, he gave attention to where he had to stand when he went to lift cylinder heads. When he went to get hold of this cylinder head, he looked to see where his feet were, and his best judgment was that his head was ten or twelve inches from the ground when he took hold of the cylinder head to lift it. The ditch may have been a foot wide, but was just a little drain, and slopes off. There were two other pits that had the same kind of drains down at the far end of the round house. The above is, in substance, the testimony of appellee himself, and it is stated as strongly in his favor as the record of it will warrant.

The uncontradicted evidence showed that the beveled ditch or drain was for the purpose of draining off the water and mud that came from the boilers when they were washed over the pits. Up to the time that the drain was made, there was so much mud and slop around there the machinists could not work and the drain was dug to make it dry. The conditions around the ditch had existed about two months before the injury. The mud was practically all cleaned up at the time of the accident. The ditch had been put there in October or November before the injury, which occurred December 31st. There was no difference in the construction of the pit where appellee was injured and the other pits, about twenty in number. From two to six cylinder heads were put off and on daily.

There was a verdict and judgment in favor of appellee for $ 3,000, from which this appeal has been duly prosecuted.

Judgment reversed and cause remanded.

Lovick P. Miles, for appellant.

The court should have directed a verdict for appellant because there was no negligence in the maintenance of the ditch or drain. 141 F. 966. Also because the ditch or drain was obvious to most casual observation. 41 Ark. 549; 74 Ark. 376; 95 U.S. 697; 57 Ark. 503; 35 Ark. 602; 82 Ark. 11; 161 Mass. 153; 85 Ark. 460; 82 Ark. 534; 163 Mass. 391; 48 Ark. 333.

Sam R. Chew, for appellee.

If the service undertaken was required by a superior, and was such that it demanded one's exclusive attention, and required him to act with rapidity and promptness, it would be unreasonable to require of him that care, thought and scrutiny which might be exacted when there is time for observation and deliberation. 53 Ark. 466. Appellee should be held to have observed only such defects as were patent to ordinary observation. 48 Ark. 333. The doctrine of assumed risks has no place here. Acts 1907, p. 163.

OPINION

WOOD, J., (after stating the facts).

The burden was upon the appellee, and he fails to show any negligence upon the part of appellant either in constructing or maintaining the ditch or drain in the condition it was at the time of the injury. He does not show that it was unnecessary, or, if necessary, that it was constructed in such manner as to be dangerous to the employees. He does not show that by the exercise of ordinary care on the part of the appellant the drain could have been constructed in a different manner. Appellee, when asked if there was any cause for the ditch to be constructed in that way, replied, "I don't know." The uncontroverted evidence is that the washing of the engines over the pits in the customary way caused mud and water to accumulate around the pits over which the engines were placed while being washed, and that these small ditches were put there for the purpose of making it...