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

• Citation: 113 S.W. 41,87 Ark. 511
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. JAMISON
• Decision Date: 12 October 1908
• Court: Supreme Court of Arkansas

113 S.W. 41

87 Ark. 511

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

Supreme Court of Arkansas

October 12, 1908

Appeal from Greene Circuit Court; Frank Smith, Judge; reversed.

Reversed and dismissed.

T. M Mehaffy, J. E. Williams and Campbell & Stevenson, for appellant.

1. The accident complained of happened prior to the passage of the act of March 8, 1907, abolishing the fellow servant rule. Appellant is not liable, because the only negligence shown if any, was that of a fellow servant. Acts 1907, pp. 162-3:

2. Appellee assumed the risk of injury that might result from the breaking of bolts. 57 Ark. 503, 506; 54 Ark. 289; Id. 389; 56 Ark. 206; 48 Ark. 333; 57 Ark. 76; 58 Ark. 324; 41, Ark. 542; 76 Ark. 69; 68 Ark. 316; 77 Ark. 367.

3. Appellee's own contributory negligence precludes recovery.

4. If there was danger in this employment, it was patent, and appellant was under no duty to keep a lookout for appellee but had the right to presume that he would keep a lookout for himself and guard against being struck by pieces of bolts. 39 Ark. 17; 57 Ark. 76.

W. W. Bandy, for appellee.

1. The risk of injury from broken bolts is not one which is an ordinary incident of the service, as is shown by the evidence. There were strict orders against breaking bolts. Taps of bolts were usually unscrewed, or, if not, wrenched off. Breaking bolts was an unusual and infrequent thing.

2. The breaking of the bolt by the Greek was at the command of the foreman of the extra crew, and appellee had gone to the place where he received the injury at the command of his foreman. The negligence, if any, was that of the master, and not of a fellow servant. 77 Ark. 367; Id. 458; 56 Ark. 206.

BATTLE J. MCCULLOCH J. dissenting, Mr. Justice WOOD concurs.

OPINION

BATTLE, J.

W. E. Jamison was in the employment of the St. Louis, Iron Mountain & Southern Railway Company. He had been ten or eleven years at the time he was injured as hereinafter stated. He was employed as a section hand, the principal part of whose work was to take up old ties and rails and replace them with new. In doing this work the bolts which held the old rails together were sometimes broken. This was not an uncommon occurrence on defendant's road, and was well known by Jamison, and had been done by himself, and was attended by danger of injury to employees at the time engaged in the work. It was necessary to be done when nut attached could not be unscrewed. In the month of December, 1906, Jamison and others in the employment of the railroad company, in the course of their employment, were engaged in removing the old track on the Knobel-Helena branch of the company's road, between Lafe and Gainesville in Greene County, and replacing it with new and larger steel rails. While so engaged, many bolts were broken before the 17th day of December, 1906, when the foreman of such employees ordered one of them to break a certain bolt, which he (the employee) did by striking it so as to make a part of it fly in the direction of Jamison and hit and severely injured him. He brought this action against the railroad company to recover damages on account of the injuries received, and recovered judgment. Was he entitled to recover?

"When a servant enters into the service of another, he assumes all the ordinary and usual risks and hazards incident to his employment. He is presumed to have these risks in contemplation, and to contract in reference thereto when he enters into the employ of the master, and consequently cannot recover for injuries resulting to him therefrom." Southwestern Telephone Co. v. Wonghter, 56 Ark. 206, 19 S.W. 575.

In this case the plaintiff had been in the service of the defendant for ten or eleven years at the time of the accident, and in that time bolts were broken in removing old rails in the railroad track of the company for the purpose of replacing them with new. While they were not in all such cases broken yet it was a means employed in removing them. Plaintiff knew this, and, when he entered into or continued in the service of defendant, assumed the risks of dangers incurred by the breaking of bolts in such removal as an ordinary incident, and the railroad company was not liable to him for the damages caused by the breaking. Railway Company v. Davis, 54 Ark. 389, 15 S.W. 895; Kuhns v. Wisconsin, etc. Ry. Co., 70 Iowa 561, 31 N.W. 868; Abbot v. McCadden, 81 Wis. 563, 51 N.W. 1079; 3 Elliott on Railroads, (2 Ed.), § 1289, and cases cited. And the order of the foreman in this case did not make it liable. The evidence does not show that there was any negligence in making the order, or that it was improper. The foreman did not direct how the bolt should be broken, neither was it his duty to do so; the presumption...