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

• Decision Date: 16 January 1939
• Docket Number: 4-5335
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. WARD
• Court: Arkansas Supreme Court

124 S.W.2d 975

197 Ark. 520

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. WARD

4-5335

Supreme Court of Arkansas

January 16, 1939

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.

Judgment reversed and cause dismissed.

J W. Jamison and Warner & Warner, for appellant.

George A. Hurst and Partain & Agee, for appellee.

MCHANEY J. HUMPHREYS and MEHAFFY, JJ., dissent.

OPINION

MCHANEY, J.

This action was brought by appellee against J. M. Kurn and John G. Lonsdale, trustees in bankruptcy, for the St. Louis-San Francisco Railway Company, hereinafter called appellants, and one Hollowell, to recover damages in a large sum alleged to have been sustained by reason of personal injuries on October 14, 1937, while in the employ of appellants, occasioned by the alleged negligence of said Hollowell, a fellow-servant. Trial resulted in a verdict and judgment for $ 5,000, for a reversal of which this appeal is prosecuted.

Appellee, Hollowell and a number of other employees were engaged as laborers in the dismantling and removing of the railway tracks, including rails, ties, etc., of the St. Paul branch of appellant railway company and in loading the rails and ties on cars. At the time of the alleged accident to appellee, he and Hollowell were carrying a heavy crosstie, weighing from 350 to 400 pounds, on their right shoulders to a box car some 300 feet away, appellee being in front, into which it was to be loaded. The complaint alleged that, "as was the custom and practice, when they got to the car they both stopped for the purpose of permitting two other employees inside the car to lift same off of plaintiff's shoulder, so that same could be loaded into the car; that when plaintiff and said defendant so stopped the said defendant (meaning Hollowell) suddenly and without any signal or warning whatever to the plaintiff, carelessly and negligently stepped forward, thereby causing the plaintiff to be pushed against said railroad car and to stumble and his body to be twisted and wrenched by the heavy weight of said crosstie so that plaintiff was seriously and permanently injured," as later detailed. Appellant's answer was a general denial of all the material allegations of the complaint, and a plea of contributory negligence and of assumed risk, in bar of the action. Hollowell filed no answer or other pleading in the case, and did not testify to any fact in connection with this action, his only testimony being directed to the fact that he worked for appellants on the St. Paul branch job, and that he has a claim against appellants for an injury he received, he being represented in said claim by one of counsel for appellee.

We think the court erred in refusing to direct a verdict for appellants at their request on the ground that no actionable negligence is shown, conceding that the complaint states a cause of action, a question not raised or presented.

In detailing how the accident occurred, appellee testified as follows: "Q. In this particular instance, when you said you were hurt, what was the weight of that tie? A. I judge somewhere between 350 and 400 pounds. Q. Was it helped up onto your shoulder where you took them up? A. Yes, sir. Q. How far did you carry it to the box car? A. Between 200 and 300 yards. Q. When you reached the box car, what did you do? A. Stopped there and waited there a minute; there were two men ahead of us and waited until they got out of the way. Q. Where was the end of the tie? A. Pretty close to the door. Q. Was it or not on your shoulder? A. It was. Q. Then what happened? A. This Hollowell stepped forward. Q. Did he let you know that he was stepping forward? A. No, sir. . . . Q. What happened to you then? A. It threw me in a twist and threw me up against the side and bottom of the door on the box car and hurt me along in here. Q. Where was the tie at this time? A. Still on my shoulder. Q. Then what happened? A. These fellows took it off of my shoulder as quick as they could. Q. What did you do? A. I walked off and sat down." On cross-examination he testified: "Q. Now, Boyd, let's see; you and Hollowell walked up with this tie, you on the front end, and he on the back end? A. Yes, sir. Q. And you walked up to the door on the front end, close to the door where the tie was to be delivered? A. Yes, sir. Q. And you stopped? A. Yes, sir. Q. You waited for the men inside to come and take it off your shoulder? A. Yes, sir. Q. And Hollowell came forward? A. Yes, sir; stepped forward. Q. And that threw you against the box car? A. Yes, sir; and in a strain. Q. You don't know what made Hollowell do that? A. No, sir. Q. You were not looking at him. A. No, sir. Q. Your back was to him? A. Yes, sir. . . . Q. He didn't explain why he stepped forward? A. No, sir. Q. And you don't know now why he did? A. No, sir. Q. The ground was dry where you were standing? A. Yes, sir. Q. And where he was standing? A. Yes, sir. . . . Q. Did the tie go against the sidewall of the box car or did your body? A. My body. . . . Q. The door of the car was open and that made the floor about level with your shoulder or something like that? A. The bottom of the door was right about along there (indicating). Q. Below the level of your shoulder? A. Yes, sir. Q. The man in the car would reach down and get the tie in his hands? A. Yes, sir."

Two other witnesses testified they saw Hollowell take a step forward and shove appellee into the car. The two men working inside the car said they knew nothing about his getting hurt at the time, and only learned about it afterwards.

For the purpose of this decision we accept appellee's testimony and that of his witnesses as true. The mere fact that Hollowell took a step forward without notice to appellee that he would do so cannot be said to be negligence. Negligence is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the same or similar circumstances, and to be actionable there must be a violation of duty resulting in injury to another. Armour & Co. v. Rose, 183 Ark. 413, 36 S.W.2d 70. Negligence is never presumed, but the burden is on the party asserting it to establish the fact by a preponderance of the evidence. Nor is it to be presumed from the fact of injury, and no one is liable in damages for a purely accidental injury. In this case, we think the evidence discloses a pure accident, for which appellants are not liable. Appellee and Hollowell were performing a very simple operation--the carrying of crossties to a box car...