85 Ark. 600 | Ark. | 1908
(after stating the facts.) Appellant contends that the court erred in refusing to instruct the jury to return a verdict in its favor for the following among other reasons, to-wit:
“1. That the plaintiff has failed to show any negligence on part of the company as alleged in the complaint and'denied in the answer.
“2. His injuries were the result of his own contributory negligence.
“3. Having full knowledge of the condition of the device, he assumed the. risk of using it, as the proof shows he used it.”
The only negligence alleged is that appellant furnished a defective standard, one that was loose in its socket, and that slipped when appellee seized it in the act of giving the slow signal.
Appellee stated that “on a car loaded with railroad irons it was always necessary to have standards; that standards were necessary, no difference what the car is loaded with.” He says that the purpose of the standards “was the protection of the material on the car, and for the protection of the employees of the -company to keep things from falling off when the cars are being switched.” The purpose of the standards being to keep the material on the flat cars from falling off when the flat cars were being switched, appellant was not negligent in the matter of furnishing standards, so long as the standards it provided served the purpose for which they were intended. There is no evidence in the record that the standards which were being used at the time appellee received his injury were insufficient for the purpose of keeping things from falling off the cars, when they were being switched. The burden was upon the appellee to prove the negligence charged in its complaint, to-wit, “in furnishing a defective standard.” In the absence of evidence showing that the standards were insufficient or defective in serving the purpose for which they were constructed and to be used, appellee fails to sustain his allegation of negligence. If appellee had shown that the purpose of standards on flat cars was to furnish handholds for the brakemen when they were giving slow signals, the case would have been different. In that case appellant would have been negligent if it failed to exercise ordinary care to furnish standards that provided safe and secure handholds if it became necessary for the brakemen to swing out from the side of the car in order to give the proper signals. But there is no such proof in the record.
Appellee was asked this question: “In performing the service that you were performing there, is it necessary for a brakeman to hold a standard, in order to perform the service?” He answered: “It is in a case of that kind; he could not do it otherwise.” This testimony of appellee can only mean that •in a case where a brakeman was giving a slow signal by swinging out from the side of the car, as appellee was attempting to do in this case, it was necessary for him to hold oh to the standard. But this evidence falls far short of proving that the proper way of giving the slow signal was to swing out from the car and to hold on to the standard in doing so. True, appellee gave the slow signal in this way, and testified that all the brakemen he ever worked with did the same thing. But this did not establish that it was a proper method, or that it was so continuous and notorious that the company must have known it and sanctioned it. In the absence of proof from •which such knowledge and acquiescence on the part of the company could be inferred, it would not be liable for failing to exercise ordinary care to furnish appliances that would make the methods adopted by its employees, without its knowledge and acquiescence, safe. See St. Louis, I. M. & Sou. Ry. Co. v. Carraway, 77 Ark. 405.
There is no evidence to warrant the jury in finding that appellant was negligent in that it furnished defective standards. The judgment has no evidence to support it, and the court should have directed a verdict in appellant’s favor.
Even were it conceded that appellant was negligent in furnishing “angle bars” for standards, the appellee knew, when he took hold of the angle bar, that it was not the usual standard, he knew how it was placed in the socket, knew that'it did not fit the socket, and when he, under these circumstances, released the grab iron with his right hand, depending upon the insecure angle bar for support, he assuméd the risk of the danger incident to this method of giving the signal. Appellee had been in the service for some time, and had seen these angle bars used as standards before. The defect was perfectly obvious to him, and his own negligence in putting himself in the dangerous position described by him contributed to the injury he received, and precludes his recovery therefor.
Reversed and remanded for new trial.
