St. Louis & San Francisco Railroad Co. v. Whayne

• Decision Date: 08 July 1912
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. WHAYNE
• Court: Arkansas Supreme Court

149 S.W. 333

104 Ark. 506

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. WHAYNE

Supreme Court of Arkansas

July 8, 1912

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

Judgment reversed, and cause remanded.

W. F Evans and B. R. Davidson, for appellant.

1. The company is not responsible for the accident. Whayne had authority over the whole gang, and the rods were moved in the customary way. There being different methods to do the service, the company had a right to elect, and it was not negligence to so elect. 57 Ark. 76. No negligence is shown and the custom was well known to plaintiff. Id. 26-28; 97 Id. 486; 87 Id. 511-513; 89 Id. 50.

2. The removal of the rod was not the proximate cause of the injury. 86 Ark. 289; 91 Id. 260; 94 U.S. 475; Labatt on Master & Servant, § 142; 53 Mich. 212; 53 Id. 274; 156 F. 234.

3. It was an accident purely. 77 S.W. 764; 86 Id. 289; Watson on Pers. Injury, 200; 74 N.E. 902; 3 Am. Neg. Rep. 485.

4. White was guilty of no negligence. He was not aware of Whayne's presence, and could not be required to anticipate the injury. 83 S.W. 68; 171 F. 410; Labatt on M. & S., § 147.

5. Plaintiff was guilty of contributory negligence. 74 F. 155-8; 171 Id. 410; 126 Id. 495.

6. An accident is no proof of negligence. 181 F. 91; 179 U.S. 658; 53 Mich. 212; 42 S.W. 679, 682.

Sam R. Chew, for appellee.

1. It was the negligence of the company that caused the injury. There was no contributory negligence, and the risk was not assumed. All these were determined by the jury under proper instructions. 67 Ark. 209; 77 Id. 458; 77 Id. 367; 56 Id. 206.

2. A servant does not assume any risks brought about by the negligence of the master. 77 Ark. 367; 67 Id. 209.

OPINION

MCCULLOCH, C. J.

The plaintiff, W. W. Whayne, was employed by defendant as a machinist to repair and overhaul engines at the roundhouse and machine shops at Fort Smith, Arkansas. He was injured while engaged at work, and instituted this action to recover damages.

A disabled engine was brought into the yards for repairs, and the side bars, or rods, as they are called, had been disconnected and loaded on top of the tender. This had been done while the engine was out on the line, and it became necessary to take them down, and then to replace them on the engine when the work of repair was complete. These rods were twelve feet long, six by nine inches in size, and weighed about seven hundred pounds. In the front end there was an oblong hole about five inches in size, and on the other end a hole nine by fifteen inches in size. Plaintiff called on Crawford, the foreman of the roundhouse, for men to remove the rods, and the latter told plaintiff to call a gang of men to do that work. The gang consisted of four rough laborers, working under a foreman, White by name, and plaintiff called them pursuant to the instructions from Crawford. There is a conflict in the testimony whether the gang worked under the orders of plaintiff as machinist or independently of him under the orders of Crawford. They proceeded to unload the side rods, and unloaded the first one by removing it through the gangway between the engine and tender. Another engine on an adjoining track was in the way of the removal of the other rod, and they attempted to unload it by throwing it off the back end of the tender. One end fell clear, but the small end rested on the end of the tank. In order to push it down, White got a pinchbar, and, putting it through a hole in the lower end, was engaged in pinching the rod away from the tender so as to allow the upper end to fall to the ground. When it fell, it rebounded with great force, and jerked the pinchbar out of White's hands, threw it over the tender, and struck plaintiff, who was at work on the tank and was in a stooping position removing some brass pieces. Plaintiff was not assisting in unloading the rods, but, as before stated, it is controverted whether or not he controlled White's gang of men who were doing the work. The pinchbar struck plaintiff with great force and inflicted a severe injury, for which the jury assessed damages in the sum of $ 2,000.

Negligence of White is charged in two particulars--one in unloading the rod by throwing it off the end of the tender, instead of removing it through the gangway, and the other in using a pinchbar to throw down the rod after the end lodged against the tender, instead of lowering it in some other way. The court submitted the case on both of those questions of negligence.

The defendant asked a peremptory instruction, and also asked an instruction taking away from the consideration of the jury the charge of negligence as to the manner of unloading the rod by throwing it off the end of the tender. We are of the opinion that the court erred in refusing to take that question from the jury. Unloading the rod in that way had nothing to do with plaintiff's injury, and was therefore not the proximate cause thereof. The rod had been thrown from the tender, and one end was resting on the ground when plaintiff went up on the tank and took the position he...