117 Ark. 524 | Ark. | 1915
This is an action instituted by appellee to recover damages on account of injuries received while working in the service of appellant as fireman on its railroad. There was a rubber hose attached to the injector pipe and appellee was using it for the purpose of wetting the coal in the tender so as to keep down the coal dust, and the hose, on account of the -insecure connection with the pipe, would not stand the pressure, and blew off, causing a -stream of hot water to be thrown against appellee’s leg. He was severely scalded below the knee, and was confined to his house about ten days, suffering considerable pain in the meanwhile, and was incapacitated from work for a still -longer period of time. Appellant’s manager p.aid appellee the sum of $24, and introduced in evidence a contract'in writing purporting to release the company from all liability for the injuries received. Appellee -admitted that the sum of money named above was paid to -him for thirteen days of his time lost after the injury, but denied that it was to cover any other -elements of damage, or that he signed any writing of any kind or agreed to accept the sum in full compensation of all of his injuries. The case was -tried before a jury and a verdict was rendered in appellee’s favor assessing damages in the sum of $100.
It is insisted in the first place that the evidence was not sufficient to sustain the verdict in that there was no negligence proved, and that the appellee himself was guilty of negligence in failing to inspect the defective appliance which caused his injury. It appears from the evidence that the piece of hose was about four feet long and was connected with tne pipe back under the side of the engine at an inconspicuous place. The piece of hose was attached for use especially in watering the coal in the tender so as to keep the coal dust from flying. The engineer applied to his superior for a piece of hose and a clamp with which to attach it to the pipe, and when it was furnished to him, the ¡clamp was too large. The manager told the engineer to put in an additional strip of rubber so as to make the connection secure, .and the evidence adduced ¡by appellant tends to show that the engineer frequently inspected the connection, and that there was no negligence in leaving it in that condition. We think there was enough evidence to warrant the inference that there was negligence in the manner in which the hose was attached. It is conceded that the clamp was too large, and the jury might properly have found that there was negligence in using that kind of a clamp, or that there, was insufficient stripping to make the hose large enough to fit the clamp. The defect was, too, of such a. character' as to warrant 'the inference that there was negligence in not making proper inspection to discover its condition. The engineer testified that he made frequent inspections, but the jury might have found that his inspections were not sufficiently searching and accurate to discover the defect. The duty devolved upon the master to exercise ordinary care to make this appliance reasonably safe for the use intended. It can not be said that the appliance was solely for the personal use -and convenience of the engineer ¡and fireman, though it is true that it added to their comfort in keeping down the coal dust. It was, after all, one of the appliances about the engine which was considered necessary in the performance of the duties of the servants in charge of the engine. Nor ¡can it be said that the defect was such an obvious one that the appellee was bound to take notice of its ¡condition. The duty of inspection was that of the master, and the appellee, as fireman, was not hound to search for hidden defects, ¡but was only compelled to take notice of those which were open to observation. We think the evidence was sufficient, and that the verdict ought not to be set aside on that ground.
It is claimed that some of the instructions given at the request of plaintiff on the subject of the master’s duty were erroneous in ignoring the question of release, but the answer to that contention is that those instructions covered different subjects .and could not very well have been understood by the jury as excluding the defense predicated on the release inasmuch as numerous instructions were given on the latter subject at the request of plaintiff, and .also at the request of defendant.
“9. You are instructed that if the engine up on which the hose was .attached was inspected some five or six times a day by the engineer in charge thereof, and that he was an 'experienced engineer, and no faulty attachment was discovered, this would be all the inspection that a reasonably prudent man would do, and even if the plaintiff was injured by the hose becoming detached, then you are told that this would be a mere accident which the defendant could not reasonably anticipate, and your verdict will be for the 'defendant.” The court refused to give the instruction as requested, but modified it so as to tell the jury that it was proper to consider the frequent inspections made by the engineer in determining whether or not there was negligence on the part of the master. The instruction as requested was erroneous for the reason that it told the jury as a matter of law that, because the inspections were made by an experienced engineer, there could be no negligence in the case. The jury might have found that the engineer made inspections, but that notwithstanding, he was guilty of negligence in failing to discover the defect, and that the master was responsible. That was one of the master’s duties, and if the servant to Whom it was 'delegated made an insufficient inspection, the master was liable for his negligence. After all, it was. a question for the jury to determine whether or not the defect was of such a character as should have been discovered upon proper inspection, and the fact that repeated, inspections were made is not conclusive that there was no negligence. The court was correct, therefore, in making the modification in the instruction.
We .are of the opinion that upon the whole there was no prejudicial error in the matters ¡brought to our attention in the argument, and that the judgment should be affirmed. It is so ordered.