90 Ark. 387 | Ark. | 1909
(after stating the facts). The burden was upon the appellee, and he fails to show any negligence upon the part of appellant either in constructing or maintaining the ditch or drain in the condition it was at the time of the injury. He does not show that it was unnecessary, or, if necessary, that it was 'constructed in such manner as to be dangerous to the employees. He does not show that by the exercise of ordinary care on the part of thq appellant the drain could have been constructed in a different manner. Appellee, when asked if there was any cause for the ditch to be constructed in that way, replied, “I don’t know.” The uncontroverted evidence is that the washing of the engines over the pits in the customary way caused mud and water to accumulate around the pits over which the engines were placed while being washed, and that these small ditches were put there for the purpose of making it dry. It was shown that it was a frequent occurrence to see the ground damp around the pits, that without these ditches the mud and slime would accumulate so that the machinists could not work about the engines. It was not shown by appellee that the drain could have been constructed in such manner as to have made the place around the pit where appellee was working absolutely dry, or that ordinary care to provide a safe place required that the drain be so constructed. There is no proof in this record that the place where appellee was working at the time of his injury was not' a reasonably safe place. But, if the place was not reasonably safe, the evidence does not show that such condition was' by reason of any failure on the part of appellant to exercise ordinary care to make it so. This case comes well within the facts, and the law announced by the circuit court of appeals in Haggerty v. Chicago, M. & St. P. Ry. Co., 77 C. C. A. 282, 141 Fed. 966, where the facts are stated in the syllabus as follows:
“Switchyards of a railroad company were on a general level' with the top surface of the ties, and, in order to drain off the water which would otherwise accumulate thereon, a number of small ditches or drains were made crossing under the tracks between the ties. In the spring it was necessary to clean out such ditches in order that they might carry off the water from the melting ice and snow. Plaintiff was a night switch tender; had been employed by defendant in such yards for four or five years, during which time such system of drainage had 'been in use. While in the performance of his duty one night in the.spring, he stepped into one of such ditches which had been cleaned out the day previous to a depth of from three to six inches, and fell and was injured by striking the rail.”
The court -said: “It was the duty of the railway company tG use ordinary care to furnish Haggerty with a reasonably safe place in which to perform his duties, and it was also the duty of Haggerty to use ordinary care to not unnecessarily expose himself to dangers which he knew, or in the exercise of ordinary care might have known.”
The court further said: “We do not think that under the evidence in the record the company was negligent in failing to cover this ditch or to place a danger signal- there when it was cleaned out. We are of the opinion that the injury which Haggerty received resulted from one of the ordinary risks and hazards which he assumed when he entered the service of the company.”
Not only was there no evidence of any negligence on the part of the appellant, but the testimony revealed a condition about the engine that could not have escaped the notice of any man of ordinary experience and observation, whose senses were alert. The “hurry up” order which appellee received did not, eo instanti, put him in a place of danger, with no opportunity to observe his surroundings. He was engaged some twenty minutes in a few feet (two to six) of the place where his in-, jury occurred, helping to take off the cylinder head. The drain and the water and the slippery ground were perfectly obvious to any oné who would use his eyes. Although appellee testifies that he had not noticed the condition of the ground, and did not know that it was wet and slippery at the time he went there, he does not say that it was not patent to his observation had he only looked. He says he was hurried, and had his attention on his work. But that is no excuse for not looking when he shows that he was around there twenty minutes before his injury, and shows he had been engaged in work for the company as painter helper and machinist helper for more than a year. As painter helper he had to climb upon the engines, and as machinist helper be carried tools and helped them lift things. He had been in this particular round house work some twenty days before his injury, and was thoroughly familiar, or could and should have ¡been familiar, with the conditions surrounding these engines. It was not like the case of an emergency call to couple cars with de-fective drawheads with 'which there had been no previous opportunity to become familiar, as in St. Louis, I. M. & S Ry. Co. v. Higgins, 53 Ark. 458, nor is it like the case of Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333, where the employee was taken away from the place where he had been accustomed to work ■that was in a perfectly safe condition, and put to work for the first time at a place with which he was not familiar, and where, under the circumstances, it being a dark and cloudy night, the defects were not open to ordinary observation. But this is a plain case of an obvious defect, if one existed, established by the undisputed evidence, even the evidence of appellee himself. As appellee was of age and an 'experienced employee, and as the ■condition which he claims caused his injury was perfectly obvious, we are of the opinion that there was no question under the evidence to send to the jury, but that the court should have directed as a matter of law that appellee had assumed the risk as one of the ordinary incidents to the employment in which he was engaged at the time of his injury.
But if we are mistaken in the view expressed, and if the facts show that appellant was negligent, then these same facts will discover, without contradiction, that appellee was also guilty of contributory negligence. For any man of ordinary prudence could and should have discovered the condition of the ground where appellee had to stand when he made the “heavy lift.” It was broad daylight, and the ditch and slippery ground could have been seen in a moment. His eyes came within ten or twelve inches of his feet as he stooped to make the lift. The exercise of ordinary care made, at least, a look for his own safety imperative. Twenty minutes was more time than necessary by the use of ordinary diligence to discover a defect, if defect it may be called, so patent as the one revealed by the undisputed evidence in this case. If authority is needed to sustain the conclusion reached it will be found in the following cases: St. Louis & S. F. Rd. Co. v. Marker, 41 Ark. 549; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333; Fordyce v. Stafford, 57 Ark. 503; Fordyce v. Edwards, 65 Ark. 98; Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11; Louisiana & Ark. Ry. Co. v. Miles, 82 Ark. 534; St. Louis & S. F. Rd. Co. v. Fritts, 85 Ark. 460; Ark. Cotton Oil Co. v. Carr, 89 Ark. 50.
The appellant asked the court to instruct the jury “to find for the defendant.” It was error to refuse this request.
The judgment is therefore reversed, and the cause is remanded for a new trial.
