Wyandotte & S. E. Ry. Co. v. Wilson

• Decision Date: 08 June 1914
• Docket Number: (No. 33.)
• Citation: 168 S.W. 565
• Parties: WYANDOTTE & S. E. RY. CO. v. WILSON.
• Court: Arkansas Supreme Court

168 S.W. 565

WYANDOTTE & S. E. RY. CO. v. WILSON.

(No. 33.)

Supreme Court of Arkansas.

June 8, 1914.

Appeal from Circuit Court, Grant County; W. H. Evans, Judge.

Action by William Wilson against the Wyandotte & Southeastern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Appellee was the plaintiff in the trial below, and alleged in his complaint that he was on one of appellant's railroad cars, assisting in distributing ties along its tracks, for the purpose of repairing the tracks, and was working with one of appellant's other servants in the performance of that duty; that appellant had negligently so constructed the track as to leave a number of trees standing near the track, some of them being within three feet; and that while appellee was so engaged and working with his back toward the engine and toward the direction in which the train was going, throwing ties from the car, which was being run at about the rate of 15 miles per hour, and while appellee could not see in front of him, and did not know the condition of the track and the proximity of the trees thereto, and unaware of the danger of throwing the ties from the train, and while appellant was unaware of these conditions, the end of one of the ties which was thrown from the car struck against a tree which was about three feet from the track; that the running of the train at the time the tie was thrown caused the other end of the tie to be thrown around against appellee, striking him in the stomach and side and knocking him a distance of about 15 feet to the ground and inflicting serious injuries. It appears to be undisputed that appellee was injured in a manner substantially as alleged, except that the proof on the part of the appellant shows that the speed of the engine did not exceed three or four miles an hour. Appellant alleged in its answer, and offered proof tending to show, that appellee's injury was caused by a negligent and inattentive discharge of his duties in failing to observe the tree before throwing off the ties, and that appellee was fully aware of the danger incident thereto. The proof shows that there were a number of trees near the track, and that appellee had worked for appellant long enough to be thoroughly familiar with that fact; that the car from which the ties were being unloaded was in front of the engine which was in charge of a Mr. Ray, who was the foreman, and directed the throwing off of the ties; and that if he wanted ties thrown off fast he would hold up his whole hand, and that if he wanted one tie thrown off he would hold up one finger, and two fingers held up would indicate two ties to be thrown off, and so on. Appellee testified that he had received a signal to throw off ties rapidly, and that he was doing so, with his back towards the direction in which the train was moving, and that while so employed the end of a tie hit a tree which was within a few feet of the track and injured him.

The instructions dealt chiefly with the question of the negligence of appellant in having trees standing in close proximity to the track, and with the question of the assumption of risk. Appellee recovered judgment for substantial damages, and this appeal is prosecuted from that judgment.

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