St. Louis-San Francisco Railway Co. v. Burns
| Decision Date | 23 January 1933 |
| Docket Number | 4-2817 |
| Citation | 56 S.W.2d 1027,186 Ark. 921 |
| Parties | ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BURNS |
| Court | Arkansas Supreme Court |
Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.
Judgment reversed, and cause dismissed.
E. T Miller and Warner & Warner, for appellant.
Partain & Agee, for appellee.
This action was brought by the appellee against the appellant in the circuit court of Crawford County to recover damages for personal injuries alleged to have been caused by an injury to his eye while cutting a cotter pin with a chisel and hammer at the shops of appellant company. There was a verdict and judgment for the amount sued for, from which is this appeal.
Several questions are presented which we find it unnecessary to decide, as it is our opinion that the first assignment of error urged by the appellant is well taken, and our determination of that question disposes of the case.
It is claimed, and we agree, that there was no actionable negligence shown by the evidence, and the court should have given the peremptory instruction requested by the appellant. In arriving at this conclusion, we do not overlook the rule that the evidence on appeal should be viewed in the light most favorable to the appellee and given the greatest weight to which it is entitled, if by so doing the verdict may be sustained. The appellee, Burns, at the time of the injury was at work in appellant's shops engaged in repairing a locomotive with the help of one O. N. Meeks. These two were the only persons present at the time of the injury and the only witnesses testifying regarding the occurrence. Their testimony is not in conflict except in one particular.
The evidence, which is undisputed, establishes the following facts: Appellee was 29 years old and his position with the appellant was that of a "second-class mechanic", in which position he had worked for approximately five years. Meeks was his helper at the time of the accident, which occurred during the night, as they were preparing to put truck wheels on the engine. Meeks was working under the direction of the appellee, and was told to place a cotter pin on the rail and hold it there while Burns cut off the end of it. The cotter pin was a round pin about three or three and a half inches long and about three-eighths of an inch in diameter, with a slit down the middle so that when the pin was placed through a hole in the shaft the protruding ends of the pin could be bent back on either side and prevent it from slipping out. Meeks testified that he was holding the pin with his hand with the end lying on the rail as he had been directed to do; that he did not turn the pin at all, and that it had not moved in any way at the time the appellee struck the final blow cutting off a portion of the pin, which flew out and injured him. Meeks stated that as the blow descended he turned his head to one side.
Appellee testified, in substance, that he directed the pin to be placed and held so that the slit in it would rest upon the rail, and, when it was so placed and held, he adjusted the cutting edge of his chisel on the pin and fixed it in place by striking with his hammer two light blows upon the head of the chisel, thus "setting" it. He then prepared for the blow by which he proposed to sever the end of the pin, and stated that, as the hammer was falling, "it seemed as if something attracted the attention of Meeks, and he turned his head, and at the same time the pin was turned"; that he had already started down with the blow, and it was impossible to stop it then. At this time he was standing down in a pit, and, when the pin turned as he delivered the blow, one side of it was cut off, which flew out, striking him in the eye; that the chisel and hammer were his own tools, and that he had had five years' experience and understood the work.
The question presented by this evidence is, does it show that Meeks, while helping the appellee, failed to exercise ordinary care? No fixed rule can be stated as to what constitutes "ordinary care," except that it is that degree of care which an ordinarily prudent person would exercise under the circumstances of the case. Care in one case would be negligence in another, and vice versa. That degree of care must be exercised commensurate with the danger reasonably to be anticipated. Therefore, ordinary care is a...
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Temple Cotton Oil Co. v. Brown
...is ruled adversely to appellee by such cases as Missouri Pac. R. Co. v. Lane, 186 Ark. 807, 56 S.W.2d 175; St. Louis-San Francisco R. Co. v. Burns, 186 Ark. 921, 56 S.W.2d 1027; Missouri Pac. R. Co. v. Martin, 186 Ark. 1101, 57 S.W.2d 1047; St. Louis S. F. Ry. Co. v. Ward, 197 Ark. 520, 124......
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Temple Cotton Oil Co. v. Brown
... ... 807, 56 S.W.2d 175; St. Louis-S ... F. Ry. Co. v. Burns, 186 Ark. 921, 56 S.W.2d ... 1027; Missouri Pac. Rd. Co. v. Martin, ... ...
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Ethyl Corp. v. Johnson
...that there is no duty to guard against merely possible, as opposed to likely or probable, harm. In St. Louis-San Francisco Ry. Co. v. Burns, 186 Ark. 921, 56 S.W.2d 1027 (1933), this court It is a matter of ordinary observation that frequently there is some danger attendant upon the most co......
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St. Louis- San Francisco Railway Co. v. Bryan
...under attending circumstances." Riley v. Motor Express, Inc., 193 Ark. 780, 102 S.W.2d 850. This same declaration was used in the Burns case, supra. Another quotation which seems to emphasize the position have taken in regard to this litigation is: "If the appellee did what a man of ordinar......