St. Louis Southwestern Railway Company v. Smith

• Decision Date: 04 March 1912
• Citation: 145 S.W. 218,102 Ark. 562
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. SMITH
• Court: Arkansas Supreme Court

145 S.W. 218

102 Ark. 562

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. SMITH

Supreme Court of Arkansas

March 4, 1912

Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; affirmed.

Judgment affirmed.

S. H West and Bridges & Wooldridge, for appellant.

1. The injury complained of was one of the risks assumed by appellee when he undertook the employment in which he was engaged. It was his duty to inform himself of the ordinary risks incident to the employment; and, if he negligently failed to do so, he will still be held to have assumed them. 77 Ark. 367. And since a man is the best judge of his own lifting capacity and it is incumbent on him not to overtax it, he will especially be held to have assumed the risk in employment of the kind in which appellee was engaged. 106 Tenn. 263, 61 S.W. 53; 108 Minn. 199; 99 Ga. 283; 25 S.E. 646; 53 Kan. 1; 35 P. 825; 149 Mich. 473, 112 N.W. 1125; 172 Mo. 106, 72 S.W. 515; 92 N.W. 326. Even under the fellow-servant act of 1907, the master is not an insurer of the safety of the servant. 90 Ark. 543. See also 100 Ark. 462; 97 Ark. 486, and cases cited.

2. The verdict of the jury is not sustained by the evidence and is contrary to the physical facts. The burden was on plaintiff to show negligence by a fair preponderance of the evidence. It will not be presumed from the mere happening of the accident. 100 Ark. 462. If Meadows made "an awkward step," as he states, that does not indicate negligence. As to the physical facts, the timber was rigid, and being supported by four other men--two at each end--and it was not affected by Meadow's act of stepping down. There was no way by which he could have jerked appellee, and the latter's statement to that effect is without probative force and it is not possible that the load could have been shifted, under the circumstances, so as to cause the appellee to bear more or less than one-sixth of the whole. 169 F. 55, 94 C. C. A. 423; 137 Mo.App. 47, 119 S.W. 328; 37 Ore. 74, 60 P. 907; 121 Mo.App. 92, 96 S.W. 1045; 85 Ia. 167, 52 N.W. 119; 131 Mo. 241, 33 S.W. 428; 98 Wis. 559, 74 N.W. 360; 108 Wis. 530, 84 N.W. 882; 79 Ark. 608, 625-6.

3. The fifth instruction was erroneous. The facts in the case of Railway v. Lewis, 91 Ark. 343, in which this instruction was approved were materially different from the facts in this case.

G. W. Hendricks, for appellee.

OPINION

FRAUENTHAL, J.

This is an action instituted by the appellee to recover damages for an injury which he alleged he received by reason of appellant's negligence. The appellee was employed by appellant as a carpenter, and was engaged in the construction of a roundhouse in the city of Argenta. On the day of the injury, he and five other workmen in appellant's employ were directed to carry certain heavy timbers to the roundhouse. At the time of the injury, they were carrying a large timber twenty-five to thirty feet long, and weighing about 425 to 450 pounds. The workmen were divided into pairs, and each pair had a lug-hook, which caught beneath the timber and supported it, while the workmen held the ends of the bars or handles. This arrangement caused three men to be on each side of the timber, one being at each end and one in the center.

The appellee and a fellow-servant named Meadow occupied the center position. In taking a timber from a pile, it was necessary for Meadow to get upon the pile and go down after the timber had been lifted. According to the usual manner in which this was done, he would walk along the timber on the pile to its end, where it sloped nearer to the ground, before stepping off. On this occasion, Meadow had mounted on the pile, which was from eighteen to twenty inches high, and the workmen picked up the timber and started to walk away with it. The appellee was holding on to the handle of the lug-hook upon his side of the timber, and Meadow was holding to the other handle upon the opposite side. The lug-hook was so constructed that as Meadow raised his end of the handle while standing upon the pile it lowered the end of the handle which was held by appellee. Instead of walking down to the end of the timber upon which he was standing, Meadow suddenly and without notice to the appellee stepped off the timber, from the elevation of eighteen to twenty inches, on to the ground. The effect of making this step was to cause the handle of the lug-hook in appellee's hand to go up, and when Meadow reached the ground he gave the hook a severe pull, which jerked the handle in appellee's hands suddenly downward. The testimony on the part of appellee tended to prove that the effect of this was to make a greater lift or strain upon him, and cause a sudden strain upon his abdominal muscles, resulting in an injury known as inguinal hernia. The appellee testified that at the time he received the injury he felt a severe pain in the groin, and immediately sat down and quit work. His foreman gave him a certificate for admission to the appellant's hospital, but appellee returned to his home and there secured the services of a physician. Since the injury he has suffered much pain, and has been compelled to wear a truss. He has been unable to perform the work of a carpenter since the injury was received.

The witness Meadow testified that in carrying all other timber he had walked to the end of the pile where it was nearer to the ground before stepping off. That upon this occasion he did not do this, but was about eighteen or twenty inches above the ground and stepped off the timber upon which he was standing, in an awkward and unusual way. Upon the trial of the case, a verdict was returned in favor of appellee.

The chief reasons urged by counsel for appellant why the judgment rendered on this verdict should be reversed are, (1) that the injury was due to a risk which appellee assumed when he undertook the employment in which he was engaged; and (2) that there is not sufficient evidence to warrant the jury in finding that the alleged injury was caused by any act of the appellant or its servants.

It is urged that appellee's employment was of a very simple character, unconnected with any complex machinery or appliances wherein there might lurk unsuspected and unknown dangers, and that the injury was but the result of one of the ordinary risks incident...