99 Ark. 108 | Ark. | 1911
(-after stating the facts). 1. It is contended by counsel for defendant that, under the evidence, th¡e jury were not warranted in finding that plaintiff was an employee of the company. We do not agree with them. The regular night watchman, who was introduced as a witness by the defendant, testified that on the night plaintiff was injured be was not able to watch the engine because his child was sick, and be hired plaintiff -to work in his place. On cross examination he said that his instructions were to hire a man who understood the work to take his place when he could not be there. This was sufficient to warrant the jury in finding that the regular night watchman had authority to hire a substitute when he was unable to do his own work.
2. It also insisted that no negligence on the part of the defendant 'is shown. In determining this the question is not whether the defendant owed its’ servants the duty of flooring the bridge, but, having elected to do so, can it be said as a matter of law that there was no negligence in creating a deceptive condition and giving no warning to plaintiff of that condition? It is true that the evidence showed that there were other ways for plaintiff to go to his work, hut it is also- true that the evidence shows that the plaintiff knew that the bridge was kept floored, and that he anid the other employees of defendant had long been accustomed to walk across the bridge in the course of their employment. The bridge was in process, of repairs, and the open space where the floor had been torn up was left unguarded. Counsel for defendant insists that it was not practicable to leave a light there because of the running of the trains. It is’ true that a light could not be left between the rails, but one might have been placed between .the tracks.or on one end of the bridge to warn .the employees of the danger of crossing the bridge in the usual manner. Failing to do this, defendant should have notified all of its employees who might have occasion to cross the bridge of its defective condition. The night on which plaintiff was injured was dark, and he had no knowledge or warning of the condition of the bridge. The defendant having elected to keep the bridge floored, and its employees being accustomed to walk across it whenever the occasion therefor presented itself during the course of their employment, we think the question of negligence or not of the defendant was a jury question.
3. The admission of testimony to the effeot that people generally were accustomed to walk across the bridge was not competent because it was not germane to the issues raised by the pleadings. We do not think it was prejudicial, however, because the undisputed evidence showed that the defendant’s employees had long been accustomed to walk across the bridge during the course of their employment, and the case was submitted to the jury on that issue.
The judgment will be affirmed.