Arkadelphia Lumber Co. v. Smith , 78 Ark. 505 ( 1906 )

Battle, J.

On the 15th day of October, 1900, Oscar Smith was seriously injured while in the service of the Arkadelphia Lumber Company. He brought this action against the lumber company to recover damages sustained by reason of the injuries.

The lumber company is a corporation, and owned and operated a saw and planing mill at Daleville, in Clark County, in this State, on or near the railroad of the Ultima Thule, Arkadelphia & Mississippi Railway Company, and was engaged in the manufacture of lumber. A lateral railroad was constructed from the main line of the railway company to and into the timber lands of the lumber company, and was used in transporting logs from the lands of the lumber company to its mill to be manufactured into lumber. Its track was temporarily laid, and in such manner as to be removed to the timber of the lumber company on different tracts of land with the least expense. Plaintiff and many others were employed by the defendant, and were engaged in hauling logs to various places on the lateral railroad by means of teams and wagons.

The evidence in this case tended to prove that the defendant owned and furnished railroad handcars to its teamsters at the close of the day to convey them from their work to their respective homes over the railroad, and that it was understood when a teamster was employed that he would be furnished with a handcar for such a purpose, and it was so understood when plaintiff was employed; and that when the lateral road was constructed it furnished such cars to its teamsters for transportation over it to their homes after each day’s work was done.

On the 15th day of October, 1900, the defendant furnished plaintiff and four other teamsters with a handcar to carry them to their homes over the lateral road. They boarded the same, and were propelling it over the lateral road at the rate of six or eight miles an hour, when it ran off the track, and violently threw the plaintiff to the ground, and seriously injured him. There was evidence tending to prove that at the place where the accident occurred the track of the lateral road had been recently laid, and an old rail, worse than the other rails on the track, with the ball or T thereof broken off for eight or ten inches, formed a part of the track at the time it was laid, and that there was a low joint in this part of the track; all of which was a defect in the construction of the track. There was also evidence tending to prove that this defect was unknown to the plaintiff at the time of the accident, and that he was making his third trip over the same when he was injured.

D. B. Hart testified that he was a tracklayer on the lateral road at the time plaintiff was injured, and as such was in the employment of the defendant.

W. E. Hubbard testified that he was an engineer operating an engine on the lateral road, and was in the employment of the defendant and of the Ultima Thule, Arkadelphia & Mississippi Railway Company.

The court instructed the jury at the request of plaintiff, over the objections of the defendant, in part, as follows:

“1. If you find from the testimony that the handcar and roadbed were furnished plaintiff by defendant or by the defendant’s foreman, Will Richardson, then the source of its title to said roadbed, whether owned by the defendant,' leased, borrowed or otherwise placed in his possession for use, is wholly immaterial. As between plaintiff and defendant, the roadbed is the property of the defendant.

“2. It was the duty of the defendant to exercise ordinary care and diligence to provide a reasonably safe track at this place for the use of the plaintiff; and if it failed to perform that duty, and plaintiff was injured by reason of such failure, then the plaintiff may recover, unless he was guilty of negligence which contributed to his injury, or knew or ought to have known of the defects of the track before attempting to use it.

“3. If, under all the circumstances which surrounded the plaintiff at the time of the accident, he ought to have observed and comprehended the danger of a defective rail and joint, if the same were defective, before using it [them], then he assumed the risk in that condition, and can not recover. The fact that he might know of the defects, or that he had means of knowing them, will not preclude him from recovery, unless he did in fact know of them, or in the exercise of ordinary care ought to have known of them.”

And refused to instruct the jury, at the request of the defendant, as follows:

“i. It is admitted in this case that the Ultima Thule, Arkadelphia & Mississippi Railway Company and the Arkadelphia Lumber Company are separate and distinct corporations, -incorporated by and under the laws of this State, and the plaintiff must be held to a knowledge of the fact that the railway company, and not the lumber company, was operating the railroad, and in going upon said road in a handcar he assumed all the risk arising therefrom.”

The jury returned a verdict in favor of the plaintiff for $3,000, and the defendant appealed.

While appellee was going home after his day’s labor was done, he was still in the service of the appellant. He was traveling in a handcar furnished by appellant according to their implied contract; and the duties of the one to the other for the day, as master and servant, were not fully discharged. Gilman v. Eastern R. Corp., 87 Am. Dec. 635; Gillshannon v. Stony Brook R. Corp., 10 Cush. 228; Seaver v. B. & M. Rd., 14 Gray, 466; Ryan v. Cumberland, etc., R. Co., 23 Pa. St. 384; Ewald v. Chicago & N. W. R. Co., 5 Am. St. Rep. 178; Packet Co. v. McCue, 17 Wall. 508.

Appellant furnished to appellee the handcar and the portion of the lateral railroad used by him at the time he was injured. D. B. Plart was its tracklayer, and as such it was his duty to “keep up” the lateral road at the time appellee was injured. D. E. Hubbard, the engineer who hauled logs over the same, was jointly employed by it and the railroad company. Appellant owned and kept handcars to be used on the lateral road by its teamsters, and it was understood by it and them that it would furnish them with a handcar to convey them over the same from their work to their homes. This was one of the inducements to them to engage in its service. Under these circumstances, when it furnished them with a handcar to be used on the lateral road, it became bound and liable to them in the same manner and to the same extent it would had the road belonged to and been controlled by it. It assumed the same duties and liabilities. L. R. & Ft. Smith Ry. Co. v. Cagle, 53 Ark. 347; Arkansas Central Railroad Company v. Jackson, 70 Ark. 295; Stetler v. Chicago & Northwestern Railway Co., 49 Wis. 609.

“Although a logging road,” it is said, “is not expected or required to he laid with the same care and security, or to be as solid and complete, as is demanded in the construction of railway tracks in use by common carriers, nevertheless it should be so constructed and operated as to render it secure to' those whose employment necessitates their going upon such road and performing services in connection with the same.” Lynn v. Lumber Co., 105 La. 455; 6 Thompson, Negligence, § § 4254, 4275, 4276.

In this case the evidence tended to prove that the portion of the track where the accident occurred was laid a short time before the injury; that an old rail with six or eight inches of the ball broken off was used 'in its construction, and that this rail was “worse than the other rails on the track — crumbled, caused a low joint.” The jury might reasonably have inferred from the evidence that the defect in the track was made by the construction of it, and not by usage, and that it was the proximate cause of the accident and injury. In that event the appellant was chargeable with notice of the defect, and liable to its employees injured on account thereof, without any previous notice or knowledge of the same. '

We find no reversible error in the giving or refusing instructions.

The evidence is sufficient to sustain the verdict.

Judgment affirmed.