St. Louis-San Francisco Railway Co. v. Blevins

• Decision Date: 15 October 1923
• Docket Number: 169
• Citation: 254 S.W. 671,160 Ark. 362
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY CO. v. BLEVINS
• Court: Arkansas Supreme Court

254 S.W. 671

160 Ark. 362

ST. LOUIS-SAN FRANCISCO RAILWAY CO. v. BLEVINS

No. 169

Supreme Court of Arkansas

October 15, 1923

Appeal from Crawford Circuit Court; James Cochran, Judge; reversed.

Judgment reversed, and cause remanded.

W F. Evans and Warner, Hardin & Warner, for appellant.

It is an elementary rule that the master is not required to make the servant's place of work and conditions surrounding him absolutely safe. 1 Roberts, Fed. liab. § 528, p 914; 60 L. ed. 384; 79 Ark. 437; 124 Ark. 298. The testimony was wholly insufficient to establish any negligence of the defendant, and the court erred in not directing a verdict for the defendant. 116 Ark. 56. Surmise and conjecture cannot supersede proof. 3 Bailey on Personal Injury, 2136; 79 Ark 437; 109 Ark. 206. Even if defendant was negligent, this was not the proximate cause of plaintiff's injury, and there was no actionable negligence established. 1 Roberts, Fed. Liab. § 538, p. 944; 53 L. ed. 671; 45 L. ed. 361; 233 F. 31; 86 Ark. 289; 91 Ark. 260. The rule is well established that a servant assumes the risks caused by the employers' negligence which are obvious and fully known and appreciated by him. 1 Roberts, Fed. Liab. § 558; p. 987; 58 L. ed. 1062; 60 L. ed. 1062; 60 L. ed. 1016; 149 Ark. 77; 135 Ark. 563; 118 Ark. 304; 97 Ark. 486; 82 Ark. 534; 62 L. ed. 385; 135 Ark. 480; 195 F. 725. The court erred in giving instruction No. 1 requested by plaintiff. It was calculated to confuse and mislead the jury, and was highly prejudicial to the defendant. 135 Ark. 330; 74 Ark. 19; 87 Ark. 471; 71 Ark. 518; 69 Ark. 380; 152 Ark. 90. Instruction No. 3 should not have been given. It does not correctly state the law, and is inherently erroneous. 62 L. ed. 385; 58 L. ed. 1062; 60 L. ed. 1016; 61 L. ed. 1162; 135 Ark. 480; 96 Ark. 387; 135 Ark. 330.

George G. Stockard, for appellee.

OPINION

MCCULLOCH, C. J.

The plaintiff, N. F. Blevins, received personal injuries while working for the defendant railway company, unloading wooden piling from a flatcar, and he instituted this action to recover compensation for his injuries, alleging that the same resulted from negligence of the defendant and its servants, who were fellow-servants of the plaintiff at the time he was injured.

It is alleged in the complaint, and the proof tends to show, that plaintiff's injuries were received while he was engaged in a class of work for defendant which constituted interstate commerce, and the action was instituted, and recovery was asked, under the Federal statute known as the Employers' Liability Act. Damages were laid in the sum of $ 3,000, and the trial jury returned a verdict in favor of the plaintiff, assessing his damages at $ 1,500, and an appeal has been prosecuted by the defendant.

The plaintiff was employed by the defendant to work in the bridge department, and, as before stated, the injuries were received by plaintiff while he and his fellow- servants, all under the direction of a foreman, were engaged in unloading piling from a car. The piling was to be used in repairing a bridge near the point where the car had been placed. It was a flat-car, and there were twenty- eight pilings loaded thereon lengthwise, of an average weight of about 2,000 pounds each. They were held in place on the car by wooden upright stakes set in sockets on each side of the car, there being eight of the stakes on each side.

One of the methods of unloading piling was for the men to remove the stakes and then roll the pilings off of the car one at a time. The men engaged in rolling the piling generally used a canthook. Some of the men worked on top of the pile, and some worked on the ground. This was one of the regular methods used in unloading piling from cars, but there were other methods sometimes used. Another method was to use what is called the "driver and hooks," whereby a line is attached to a piling, and it is pulled from the car by steam power. Another method is to put a rope around the end of the piling and fasten the other to the rail or tie, and the car is pulled away by the locomotive, thus dropping the piling on the track. According to the testimony in the case, all of these methods were at times used, and all of them were, to a certain extent, in regular use.

On the occasion when the plaintiff was injured he, together with three other men--two of them with canthooks in their hands--were on top of the car of piling, and, preparatory to, unloading the car, were removing the stakes. There were two men standing on the ground, pulling at one of the stakes, and, being unable to remove it, plaintiff walked across the car, over the top of the piling, and took hold of the stake to assist the men in removing it. As he lifted the stake up, two of the pilings on which he was standing rolled together and caught his foot. The two men standing on the ground loosened their hold on the stake, and plaintiff did the same, and the stake dropped back into the socket. Two of the men on top of the car had, as before stated, canthooks, and the testimony tended to show that it was the duty of those men to protect any workman walking across the piling by steadying the pilings so as to prevent them from rolling or skidding. The two men on top of the car did nothing on this occasion to steady the piling. There is no proof as to the cause of the skidding or rolling of the piling, except the lifting of the stake, or that the pilings rolled because of the fact that they were lying loose.

Negligence of the defendant and its servants is alleged in several respects. It is alleged, in the first place, that there was negligence in insecurely and improperly loading the timbers on the flat-car so that they would roll or skid; that the car was stationed on a slanting track, which caused it to lean to one side, and that the foreman of the crew was negligent in directing the plaintiff to walk across the load of piling without first requiring other members of the crew to protect him by holding the timbers steady; also that the timbers were slick and insecure, and in that respect it was negligence on the part of the foreman in directing the plaintiff to walk across the piling in that condition without having the men to steady them; that there was negligence on the part of the defendant in failing to "shim the bolster or gear of said car which rests on and over the truck center and truck springs," and that this gave the car a rocking motion when any weight was applied to either side, and that it was dangerous to cross the car when it was in that condition. Finally, it is charged that there was negligence on the part of plaintiff's fellow-servants (the two men with canthooks on top of the car) in failing to steady the timbers while he was walking across them, in order to prevent them from rolling, and in failing to steady them while he was attempting to remove the stake from the socket on the side of the car.

In the first place, it is contended that the judgment should be reversed for the reason that the evidence is not legally sufficient to sustain the charge of negligence in any of the respects set forth in the complaint. We are clearly of the opinion that the evidence was not sufficient to sustain any of the charges of negligence, except the last-mentioned one in regard to the failure of the two fellow-servants to exercise care to steady the piling while plaintiff was walking across the top of the pile. There was no negligence on the part of the foreman in directing appellant to work in an unsafe place, for the reason that, according to the undisputed testimony, the foreman gave no specific directions. This method of unloading piling was shown by the plaintiff's own testimony to be the regular way of doing the work, and at the time of his injuries he was on top of the car and had walked across the top, pursuant to his regular duties, and not in response to any specific directions of the foreman. In other words, there was no assurance of safety, and the plaintiff, by taking service in that department, assumed the ordinary hazards of the work done in that manner. He did not assume the extraordinary risk caused by negligence of the employer or the negligence of his fellow- servants, but he did assume the ordinary hazards of working under these circumstances. This method of unloading being one of the regular methods adopted by the master while the plaintiff was in service, he is presumed to have contracted with reference to that kind of work, and therefore he assumed all the ordinary risks.

It is not shown that the piling rolled or skidded because of the car being placed on an uneven surface; there was no proof to sustain that allegation of negligence, nor is there any proof that there was negligence in failing to "shim the bolster or gear" of the car.

There was, we think, sufficient...