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

• Decision Date: 21 December 1908
• Citation: 115 S.W. 150,88 Ark. 458
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. REED
• Court: Arkansas Supreme Court

115 S.W. 150

88 Ark. 458

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

Supreme Court of Arkansas

December 21, 1908

[Copyrighted Material Omitted]

Appeal from Marion Circuit Court; Brice B. Hudgins, Judge; reversed.

STATEMENT BY THE COURT.

Reed was a section hand, in the employ of the St. Louis, Iron Mountain & Southern Railway Company on its White River branch, near Yellville, in Marion County. Several of the section crew were returning from work on a hand-car furnished by the railroad company, and Reed and three of his companions were pumping when the lever bar, or upright iron supporting the handle, broke, and he was thrown from the car and injured. He sued the railroad company, and his complaint alleged that the railroad company disregarded its duty to use ordinary care and prudence in furnishing him with a reasonably safe and secure hand-car for the purpose of conveying him to and from his work, and to use ordinary care and diligence in keeping the same in a reasonably safe and secure condition, in that the lever was defective, and was known to the defendant to be defective, or could have been known by the defendant to have been defective by the use of ordinary care; and that it was unknown to the plaintiff.

The answer denied these allegations, and stated that if there was a defect in the lever bar the same was as patent to the plaintiff as to the defendant. The plaintiff's evidence in regard to the cause of the accident was in substance as follows: He testified that he saw no flaw or crack in the iron, and that he thought it was safe.

Robert Richardson testified that he examined the lever bar after it was broken; that the break occurred about half-way between the handle and where the lever bar was fastened to the car. That at the point of this break there was a sand-hole on the top side of the broken bar, just a little way from the edge. The sand-hole had a little shell or scale over it. That the sand-hole was about the size and shape of a pencil. The upper part of the broken handle bar appeared to have in it an old crack. Between the sand-hole and the surface it seemed to look a little rusty. That the crack could not be seen from the outside. He does not think the crack was deep enough to be discovered on observation, and the sand-hole was out of sight. That the rusty streak appeared to reach from the sand-hole to the surface. That this could not have been detected by looking ever so close to it. He does not know whether a mechanic or inspector could have seen it or not.

Keeter testified that the lever bar was broken square in two, and on the inside there was a vacancy about like a lead pencil. The bar was about two and a half inches through, and this hole was on the inside. It ran lengthways of the bar. The hole was right where the bar was broken. It was about the size of a lead pencil, and some two inches in length. The hole appeared not to be in the center of the bar, but a little to one side and there was a place that looked like it had been cracked before. That was close to the thin side. This crack was about half an inch long. If the two broken pieces are put back together, no one could see the crack there, leading to the hole inside. He does not think an ordinary examination would discover it. This crack reached to the surface, but the hole was in the heart of the iron. He says: "I do not think any one could have seen the sand-hole or the crack. Q. Was that a hollow on the inside of the iron, and this crack reaching out to the outer edge? A. Yes, sir, it was all on the inside of the iron." He thinks the rusted streak came to the surface at one little point, but it could not have been easily seen.

Willard testified as an expert, and said: "If there was a crack an eighth of an inch long, you could see it with the eye; but if there is a sand-hole on the inside you have to detect that by hammering Q. A sand-hole could be detected by hammering? A. Yes, sir." He says that with the hammer test a flaw of a half-inch could be detected. That in a piece like the one exhibited a sand-hole an inch or an inch and a half long could be detected. Then the court asked this question "Could you find a flaw in it the size of this pencil? A. No, sir."

On behalf of the defendant, it was testified by Issa Ensley, the section foreman, who examined the lever, that the crack did not show on the surface, and it was not rusty, but that it was all freshly broken. The roadmaster testified that no kind of inspection could have detected this flaw. It was also shown that this car had been in use about a year, and that it was of the Buda make, one of the best hand-cars in use. Following is the testimony of an expert, S. C. Collins introduced by the defendant: "My name is S. C. Collins. I am a mechanical engineer; have had twenty years' observation and study. There is no known test by which this flaw could have been discovered, that is ordinary test. It might be done in a terrial machine. To test or discover it by a hammer test it would require a much larger hole than this in the other piece of the bar; it would have to be two or three inches long. The torsion test is a test made by twisting, but is seldom used. Hand-car levers are sometimes made of malleable iron; usually they are made of cast iron. I see nothing wrong with this piece of iron. It is a very close grained piece of cast iron. The flaw in this piece of iron is what is commonly called a cold shot. This cavity, by being smooth on the inside, was probably full of some substance, and when it broke the substance likely dropped out. This defect could have been discovered by making a hammer test, and possibly could have been detected by a mechanical eye if the old break came to the surface. I am working for the defendant. This defect is what we call a structural defect."

The court gave instructions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, which are as follows:

"Gentlemen of the jury: This is an action by Thos. C. Reed against the St. Louis, Iron Mountain & Southern Railway Company, defendant, to recover damages for alleged injuries claimed to have resulted to him on account of being thrown from a hand-car on or about the 23d day of November, 1907, while said plaintiff was in the employment of the defendant. The plaintiff alleges in his complaint that there was a lever bar on said hand-car, and that it was defective, which caused it to break, resulting in the alleged injuries complained of, and that the defendant neglected to use ordinary care and prudence in furnishing him with a reasonably safe and sound hand-car and appliance thereunto belonging, and neglected to properly inspect the same at reasonable intervals of time in order to ascertain its condition. The defendant denies any negligence on its part with reference to said hand-car and appliances, and denies the injuries as claimed by the plaintiff, and these are the issues which you are called upon to try. The burden of proof is upon the plaintiff to establish by a preponderance of the evidence negligence on the part of the defendant and the injuries, if any, resulting to him by reason thereof.

"2. You are instructed that it was not the duty of an employee to inspect the appliances of the business in which he is engaged, to see whether or not there are any latent defects that render their use more than ordinarily dangerous, but is only required to take notice of such defects or hazards as are patent or obvious to the senses. The fact that he might have known of defects, or that he had the means and opportunity of knowing of them, will not prevent him from a recovery unless he did in fact know of them, or in the exercise of ordinary care ought to have known of them. It is the duty of the employer to exercise ordinary care and prudence in making reasonably careful examinations, searches or inspections at reasonable times by a competent inspector for hidden defects in appliances furnished to employees which can be discovered by a proper inspection by a competent inspector.

"3. You are instructed that an employee has the right to assume, in the absence of knowledge to the contrary, that the appliances which he is called upon to use in the performance of his work are reasonably safe; and if there are latent or hidden defects, or other defects of which said employee has no knowledge, or which are not obvious to him while using ordinary care and prudence, then he does not assume the risk attendant thereon.

"4. You are instructed that if you find from the evidence that the plaintiff was in the employment of the defendant as a section hand at the time and place of the alleged injuries complained of, and that in the course of his employment he was furnished a hand-car by defendant to be used in his work for it, and that while he was lawfully on said car in the course of his employment the lever bar was defective and broke by reason thereof, and that such defective condition was neither known or could have been known to plaintiff by the use of ordinary care and prudence, and if you further find that such defective condition, if any, of said lever bar could have been discovered by defendant by the use of ordinary care and diligence, and by a proper inspection, search or examination of said hand-car, and that the defendant failed and neglected to use such care and diligence, and if you further find that the injuries complained of resulted from such failure on the part of the defendant, you will find for plaintiff."

The 5th was as to the measure of damages.

"6. I charge you that there is no presumption that the company has been guilty of any negligence, arising from the fact that an accident has occurred and that an employee has been injured or...