Walker v. Louis Werner Sawmill Co.

• Decision Date: 29 July 1905
• Citation: 88 S.W. 988,76 Ark. 436
• Parties: WALKER v. LOUIS WERNER SAWMILL COMPANY
• Court: Arkansas Supreme Court

88 S.W. 988

76 Ark. 436

WALKER v. LOUIS WERNER SAWMILL COMPANY

Supreme Court of Arkansas

July 29, 1905

Appeal from Nevada Circuit Court JOEL D. CONWAY, Judge.

Affirmed.

STATEMENT BY THE COURT.

On July 29th, 1902, plaintiff, Lee Walker, filed his amended and substituted complaint, in which he alleged that he was a minor, and sued by D. C. Walker, his next friend, and that on the 22d day of November, 1901, he was in the employ of the defendant as a common workman, assisting in running one of its trains, which train was engaged principally in hauling logs to the mill owned by the defendant at Sayre, Arkansas that he had no experience in running trains or engines, which was well known to the defendant; that the engine upon and about which he was placed to work was not provided with an apparatus with which to sand the track, had no headlight, and was not provided with lanterns; that plaintiff was set to work, while said train was running, to sand the track, it being his duty to pour sand on the track with a can from a place upon the pilot of the engine; that the defendant failed to provide a safe place for him to sit, and that on the night the injury occurred, after dark, the train stopped, and plaintiff left his position on the pilot to assist in making a coupling and to procure sand; that the engine had no headlight, and plaintiff was not provided with a lantern that there was no light about the engine except one lantern in the cab, and defendant kept no lookout, and could not have seen plaintiff if he had kept a lookout, on account of the failure of the defendant to provide lights; that, while plaintiff was in the discharge of his duty, the engineer, who was also a conductor and in charge of the train, negligently and without warning started the train; that the defendant had failed to provide a safe and sound roadbed, in that the ties were of uneven lengths, some six and some eight feet long and that, in attempting to regain his position on account of having no light and the insecure place he was required to work and of the uneven ties, he stumbled over said uneven ties, and fell with his hand upon the track, and was so badly injured that amputation of his hand became necessary to save his life; that the defendant gave him no warning of the unsound and unsafe condition of the engine and track, and that by reason of youth and inexperience he was not aware of the danger to which he was exposed; that by reason of his injury his ability to earn a living had been greatly and permanently decreased; that he suffered great pain, to his damage in the sum of $ 5,000.

The answer denied the material allegations of the complaint, and pleaded contributory negligence.

Plaintiff testified as follows:

"I am twenty years old. The injury occurred November 22, 1901 between 8 and 9 o'clock at night, after dark. The train stopped to make a coupling over a hill and to get sand. There was some trouble in making the coupling, and I went back to help. When I got to the back end of the engine Mr. Norwood the brakeman, told me not to come in, as I had no lantern, and it was dangerous, and I was likely to get hurt. I started round to the front end, and before I got there, and when I was in about four feet of my place, the engine started.

"I had worked some time the first of the year on the railroad, and had worked on the train about a month when they laid me off for about a week; I had a lantern when I worked on the train the first time. They kept all lanterns at the commissary, and each man stood good for his own lantern. When I quit, I took my lantern back. The second time when I went to work, I applied to the bookkeeper for a lantern. He had charge of the affairs of the company at that point. I also spoke to Mr. Sparkman about it the morning I got hurt. I met him, and asked him if I could get a lantern, and he told me he did not know. I had been out a few trips without a lantern. Mr. Painter told me that he would have some in a few weeks, but that he had none at that time. We usually made two trips over the road each day. We seldom made three trips. The day I got hurt we were coming in on our second trip. We usually got in in the daytime, but sometimes would be after dark. They had a sand box on the engine, but did not use it. The sand was kept in a bucket sitting on the pilot between myself and the other brakeman. When the train stopped this night, I got off to get sand. Mr. Norwood went back to make the coupling. When he told me not to come in, I went to get on the front end of the engine, not expecting them to start before they gave the signal. The engineer was between Norwood and myself on the opposite side. They had three lanterns on the train, two of which were in the cab, to see about the steam and water. There were four men on the train. The engineer, fireman and Mr. Norwood each had a lantern. Each man when he got his lantern was charged with it, and if he returned it he was given credit for it. Tulley Norwood got the lantern which I turned in when I was laid off the first time. The headlight was not lighted the night I was injured, because there was no oil, and had not been lighted for four or five days, and during this time there was no oil in the headlight. Garland Nichols had charge of the train, and gave orders for running it. The train was loaded with logs. They were flat cars, called skeleton cars, with no steps on them. The brakeman generally rode on the front end, coming in. The front end of the engine had an 8x10 piece to sit on and the board for our feet. Norwood sat on one end, and I on the other, and sat close to the rail with the bucket between us, and sanded the track with our hands. We got the sand off the side of the road. I got no sand that night, as there was plenty in the bucket. They gave no signal, but just opened the throttle and started, and when I was within four feet of my place, walking by the side of the engine, I fell down, and my left hand fell across the rail. It had rained that morning, and it was a dark night.

"My hand was so badly mashed that it was amputated, and I was laid up about a month. Before I got hurt I received $ 1.50 a day. Since that time night watching is about the only thing that I can do. I paid no doctor's bill, except that I contributed fifty cents a month out of my wages for a...