Wisconsin & Arkansas Lumber Company v. Jackson

• Decision Date: 07 April 1924
• Docket Number: 282
• Parties: WISCONSIN & ARKANSAS LUMBER COMPANY v. JACKSON
• Court: Arkansas Supreme Court

260 S.W. 418

163 Ark. 436

WISCONSIN & ARKANSAS LUMBER COMPANY v. JACKSON

No. 282

Supreme Court of Arkansas

April 7, 1924

Appeal from Saline Circuit Court; Thomas E. Toler, Judge; affirmed.

Judgment affirmed.

E B. Kinsworthy and B. S. Kinsworthy, for appellant.

The court erred in allowing testimony to be introduced as to other accidents. 58 Ark. 454; 130 Ark. 493; 78 Ark. 55. The court erred in admitting the testimony of the plaintiff as to the use of the motor-car, for the reason that he was not an expert. 108 Ark. 437; 110 Ark. 90; 66 Ark. 494. A servant is presumed to know the ordinary risks. It is his duty to inform himself of them, and, if he negligently fails to do so, he will be held to have assumed them. 77 Ark. 367; 81 Ark. 343; 97 Ark. 486; 100 Ark. 462; 101 Ark. 537; 104 Ark. 489; 106 Ark. 574; 108 Ark. 483; 118 Ark. 304; 147 Ark. 95; 68 Ark 316.

D D. Glover and Mehaffy, Donham & Mehaffy, for appellee.

There was no error in permitting testimony as to other accidents. Thompson on Negligence, § 7849; 83 S.W. 592; 48 Ala. 15.

OPINION

MCCULLOCH, C. J.

Appellant has been engaged in the business of manufacturing lumber at its plant in Hot Spring County, and, as an adjunct to the plant, it operated a railroad for the purpose of hauling logs and lumber to and from its plant and for the purpose of transporting its employees to and from their places of work. The evidence, so far as developed in the present record, shows that the railroad was not operated as a public carrier, but merely for the private use of appellant in the operation of its manufacturing business.

Appellee was employed as a section-hand, and on January 15, 1923, while riding on a motor-car hauling ties to be used in repairing the track, a derailment of the car occurred, whereby appellee received severe personal injuries. He instituted this action against appellant to recover damages, alleging negligence on the part of appellant in failing to maintain the track in proper condition and in using a motor-car which was not properly constructed. The complaint contains no allegations as to negligence with respect to the speed of the car at the time the wreck occurred, but both sides, without objection, introduced proof on that issue, and there is a conflict as to whether there was negligence in operating the car at too high a rate of speed. It is undisputed that the car was wrecked, that appellee was thrown therefrom and seriously injured. On the trial of the cause the jury returned a verdict in favor of appellee, awarding damages in the sum of $ 3,000, the amount claimed in the complaint. Appellant denied the allegations of negligence, and also pleaded contributory negligence and assumption of risk.

The evidence is sufficient to establish the fact that the track was out of repair at the place where the derailment occurred; that the ties were rotten, so that they would not hold spikes, and that there was a depression of the ties, called a "low joint," and that this defect in the track caused the derailment. The evidence shows that appellant was thrown from the car, that some of the cross-ties which were being carried on the car were cast upon appellant's body, and that he received serious injuries.

There is nothing in the testimony which would warrant a finding of contributory negligence on the part of appellee, and the disputed issues of fact involved in the trial of the cause relate to the question of negligence on the part of appellant and assumption of risk on the part of appellee.

The section crew was composed of seven men, who worked in two divisions. At the time of appellee's injury he was working in the division composed of four men--a foreman and two other laborers besides appellee --and they were engaged in hauling and distributing ties to be used in repairing defects in the track. They used a motor-car, which was operated by the foreman as driver or engineer, and six ties were loaded on the car on each trip. All of the men rode on the car, except when they were pushing it along giving it a start. The other part of the crew, composed of three men, was engaged in repairing the track and placing new ties thereon after same were hauled and distributed, and they worked under the direction of the same foreman. At the time the derailment occurred the crew of men putting in ties was working at a point about a mile or three-quarters from the place from which the ties were hauled, and the derailment occurred about midway between the two points. The ties were being hauled to the place where the other part of the crew was at work repairing the track. The derailment occurred at a curve, where the track was shown to be out of repair, and, as before stated, there was a conflict in the testimony as to the speed at which the car was being operated when the derailment occurred.

Appellant requested a peremptory instruction in its favor, and we are of the opinion that the instruction was properly refused, for the reason that there was sufficient evidence to warrant the submission of the issues to the jury.

Counsel for appellant also insist that the court erred in refusing to give the following requested instruction:

"8. The court instructs you that, even if you find that the defendant railroad was in bad order, it was not negligent in sending the plaintiffs and others out to repair the same."

We are of the opinion that this instruction was peremptory in effect, and was properly refused, for appellee, at the time he was injured, was engaged in the general work of making repairs--that is to say, he was connected with the repair crew--and the effect of the instruction would have been a peremptory direction upon the undisputed facts to return a verdict for appellant. Another objection to the instruction is that appellant was not directly engaged in repair work at the time of the injury. While his work was indirectly connected with repair work, it is undisputed that he was hauling ties at the time, and that the repair work was being done by another division of the crew.

It is contended that the court erred in giving the following instruction at the request of appellee:

"4. You are instructed that it was the duty of the defendant company to exercise ordinary care in the operation of its motor-car, and ordinary care to see that its track and roadbed were kept in a reasonably safe condition, and you are further instructed that this duty required the company to make reasonable inspection to see that they were kept in a reasonably safe condition."

As the basis of the objection to this instruction, counsel for appellant invoke the rules of law announced by this court that, while a servant is engaged in the business of wrecking or tearing down a structure or appliance, as in Grayson-McLeod Lbr. Co. v. Carter, 76 Ark 69, 88 S.W. 597, and Murch Bros. Const. Co. v. Hays, 88 Ark. 292, 114 S.W. 697, or is engaged in the business of making repairs, as in St. L. I. M. & S. Ry. Co. v. Harper, 44 Ark. 524; Railway Co. v. Torrey, 58 Ark. 217; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S.W. 1048; Stout Lbr. Co. v. Wray, 109 Ark. 288; and Arkansas Land & Lbr. Co. v. Cooper, 156 Ark. 58, 245 S.W. 192, the duty of providing adequate means of safety devolves on the servant himself and not on the master, and that the latter owes the former no duty to exercise care in the selection of a reasonably safe place of work. We do not...