St. Louis, Iron Mountain & Southern Railway Co. v. Wiseman , 119 Ark. 477 ( 1915 )

Wood, J.,

(after stating the facts). The uncontro-verted evidence shows that the work of letting down the wheel, in which Wiseman was engaged at the time of 'his injury, was done by the use of a jack if the employees had .a jack for that purpose, and, if not, it was done by using a prize pole. Wiseman had been engaged in this work for several months. Instead of waiting until he could procure a jack, which was the safest way of doing it, and without making any complaint to his foreman that he had no jack for the purpose, he undertook to do the work in the customary way when there were no jacks at hand, by the use of a prize pole, and while so doing, the pole slipped iand he received the injury from which he died.

(1) The foreman testified that he had always told the men to put the jacks under there for the reason that it was easier for them to do it, but that it was done about as much one way as the other. Wiseman, being familiar with this method of doing the work, and knowing and appreciating the danger incident thereto, in deliberately choosing this manner of doing it, must be held to have assumed the risk. It was one of the ordinary dangers of the service when performed in this way. 'See, 3 Labatt’s Master & Servant, section 1166. ,

If the use of the scantling. Ayas dangerous, which it proved to be, Wiseman 'knew 'and appreciated it, and it therefore was a risk which he assumed. See Crawford’s Digest, vol. 5, p. 1079, f., “Risks.assumed by a servant.”

(2) To avoid the effect of this doctrine of assumed risk, appellee invokes Act No. 88, approved March 8, 1911, of the Acts of 1911. That act was construed by us in the recent case of St. Louis, I. M. & S. Ry. Co. v. Ingram, 118 Ark. 377. Ingram, with others, was engaged in removing some old guard rails from two bridges on the line of railroad, and they were using these guard rails as skids, or running boards over which piling was being rolled from a push ear into a flat car. This flat car was standing on the sidetrack of the railroad. In that case, Judge Hart, speaking for the court, said: “After a careful consideration of the whole statute, we do not think the Legislature intended to restrict its terms to those actually engaged in running trains. * * * We think the statute is broad enough to include 'something more than the mere running of locomotives and trains of the railroad company. It includes every employee who, when injured, was performing some work in the line of his duty directly connected with and incident to the use and operation of a railroad. The loading and unloading of oars is intimately associated with and directly connected with the operation of a railroad. Plaintiff, ,at the time he was injured, was doing a' part of the work necessarily connected with the operation of defendant’s trains. He was helping to load a car with piling to be transported to another part of defendant’s line of-road, and this work was inseparably connected with the operation of the defendant’s line of road, and brings this case within the spirit of the statute.”

The purpose of the Act of 1911 was not to include all the employees engaged in every department of the service. K. C. & M. Ry. Co. v. Huff, 116 Ark. 461, 173 S. W. 419; Ry. v. Ingram, supra. But its design was for the protection of those whose work exposed them to those “characteristic dangers peculiarly connected with the operation of railroads known as ‘railroad hazards.’” Peter Johnson v. Great Northern Ry. Co., 104 Minn. 444, 116 N. W. 936.

“Bailroiad Hazards,” in the sense of this statute, are those peculiar dangers to which employees are exposed while they are engaged in work connected with, and necessary to the operation or running of trains over a line of railroad. In Railway Company v. Ingram, supra, we said: “It includes every employee who, when injured, was performing some work in the line of his duty directly connected with iand incident to the use 'and operation of ia railroad. ’ ’ The facts show the sense in which the words “use and operation of a railroad” were employed. The words “use and operation of a railroad” as used in the opinion relate to that department of the service in which employees,. at the time of their injury, are actually engaged in the running of trains or in work that is incident thereto or intimately connected therewith.

It would he a difficult task' to determine in advance and to define specifically what cases may fall within the purview of the statute. Each case will depend upon its own peculiar facts as developed. But the undisputed facts of the present record show that Wiseman, at the time of his injury, was engaged in the work of repairing a car in the shops at MoQ-ehee. This work in no manner exposed him to those peculiar hazards which are incident to, and connected with, the physical use and operation of a line of railroad, and the work in which he was engaged did not bring him within the protection of Act No. 88, of the Acts of 1911, as construed iby us in Railway Company v. Ingram, supra.

In Potter v. Chicago, Rock Island & Pacific Ry. Co., 46 Iowa, 399, it was held that the liability of a railway company to an employee injured in a machine shop is determinable by the common law, and not by the statute, since such employee, within the meaning of the statute, was not engaged in “the operation of a railroad.” And in Hathaway v. Illinois Cent. Ry. Co., 92 Iowa 337, it was held that an engine dispatcher who was assisting a machinist in placing a spring in one of defendant’s locomotives was not engaged in work “in any manner connected with the use and operation of a railroad” within the meaning of those terms as employed in the statute.

The construction we have placed upon the statute is the same-as if the above terms were embodied in it and were used in the sense above indicated. The court erred in its ruling upon the instructions.

The judgment is therefore reversed and the cause dismissed.