1062 : ST. LOUIS-SAN FRANCISCO BY: 'CO. v. NORMAN. [169: S . T: • LOUIS-'SAN FRANCISCO : RAII:wAY COMPANY V. :NORMAN: Opinion delivered DeceMber 7, 1925.,. MASTER AND SERVANT—NEGLIGENCE OF,FELLOW SERVANT-7EVIDENCE. a suit by a servant for injuries received through the negli-. gencepf a l fellow servant, evidence tended to show that plaintiff was inju'red by the negligence of such fellOw servant: . . MASTER AND SERVANT—EMPLOYERS' LIABIlfITY ACT — ASSUMED RISK. —i'fie Federal ErnploYel : s' Liability Act • eliminates the defense of assumed risk Where the injury waS the fesult of the negligent act of a fellow servant of which the plaintiff was not aware, and ,which. WRS' not, so,',Obvious; that an ordinarily , careful person would have observed it. 3. PAMAGES WHEN NOT ExcEssIvE.—An , award . of .$500 for .„ an. injnry fo plaintiff's fOcri was not excessive where he was unable tc0'Work for three' Months thereafter, suffered mental 'and physi: cal 'pain, and a year after the injUry Was still unable to do -heavy ,labor. . Appeal froni Little River "Cfr e s ilit Cburt ; B: E:' Isbell, . dgi e; affirnied. A A , King, Mahakey .& Wlbeeler,, for appellant._ ...Shaver, Shaver .& Wilhirns, for appellee. HUMPHREYS, J. : Appellee recovered judgment : in. the ': . slim of . $500 again g appellant in the circuit cOurt . River County for an injury he received in the left foot while: engaged, with other. :employees,. in).replaeing:old rails. with new ones- on the:main linp :of . appellant 's ., way. 'It was alleged that the injury , was caused , through-the negligence of a' fellow-servant by the name .of A:he Cowens; 'who prematurely struck the rail or bolts at the : . connection joint of two. rails after' the last nut :had been. severed with the chisel :held by appellee, thereby causing the steel rail which had .been.pushed over to one side . to spring back, and strike him on the foot before he' cOuld move back or get out of the way. Appellant filed an answer denying that appellee was injured through the negligence of one of its employees as alleged in the complaint, and, by way of further defense, pleaded the assumption of the risk by appellee under the Federal Employers' Liability Act.
ARR.] ST. LOUIS‘SAN FRANCISCO RiT..Co. V. NORMAN.' 1063 • •The.cause was submitted to a jury upen the plead-, ings and:teStimony.introdueed by. the respectiye parties, •which •resulted ih: the judgment mentioned :above, •and from Which an'appeal has been duly .prosecuted to this • court. • • •..Appellant's. main . .contention, for• a , reversal :of the judgment_is the..alleged total, failure . of •any ',substantial .evidencetending toshow thatappellee wa s injured through . the: , •egligence of appellant.'•s, employee,. Abe Cowens. We, do 'mot •so.'interpret. the testimony. •Appellee .: testified that he was a inember'ota: section gang,,and'that,.at • the time he :receiVed the*injury to his fOot, :he . and his •.colaborers • were working. under , the direction-4)f a.foreman, on .appellant 's main line, of railway! near Red .Bank, :.replacing,Wd trails with new ones ;_ that i in -doing • thils, the spikes holding the north rail were drawn,.! and •it was .. pushed, 0er-with b.ars-off• •the ends . .of thei!ties, :before being,disconneeted, bnt• that, in order to Make:a connec-, tion , with the, new, rail, for; a train • to. pass • oVer• the, track, -it beeame:,neeeSSary to .diseonnect • the' old raits,,at , one •of the joints . ; . thathe: and . Abe Cowensywere direoted the..foreman to. cut,the • taps;•off •the •bolts at: thei joint ; that he held the chisel against the taps while . Abe: Rtruek ;: that. the, joints, were held in Place : by bolts >and angle , bars when all ta.ps were removed; that,;when the last.tap ..was removed, at. thisiparticular joint, Abe struck :the.rail • or bolts, to: loosen the joint !and break it apart-before , he . (appellee) had time to' move back:or get.'out Of the •IVay, • which lick eaused. the . joint to break,: thereby, permitting :the railto spring back 'in place and strike , hiM 'on the left foot. appelleetestified truthfully, the Injury was caused by the negligent striking of the rail or bolts by . Abe Cowens. Abe should have waited until appellee had an opportunity to move baCk or get. out of the way before striking the rail or bolts to loosen the joint. The premature striking of the bolts by appellant's servant was not an incident to the employment assumed by appellee, for he had no . means of knowing that Abe Cowens would
' 1064 °ST. LOUIS-SAN FRANCISCO RY. CO.- v.'NORMAN. [169 'strikelhe rail or bolts to break the joint before he could get=out of the way.. There is no substantial evidence in the recoid tending to show that appellee was aware 'of •or could have observed the negligent . act of his co-laborer in time to have avoided the injury. One purpose Of 'the Federhl Employers' Liability Act* was to eliminate the .defense . of assumed risk Where the injury 'was tbe ,result of a negligent act of a fellow-servant, of which the injured party was aware or which 'was so obvious that —an ordinarily careful person would have observed. St. L. S. F: R. Co. v. Blevins, 160 Ark. 362: 'Under this view of the evidence the court:did not err .in • !ref-Using to give the instruction which appellant reqUested defining 'assumd' risk, nor was- appellant •prejudiced by the instructions given upon -this 'Cluestion by the court.. ' We have. carefully examined the instructions : Of the 'court subinitting the only . issue in the case to . the 'jury, .as Well as' the objections made tcl'' them, but'find no : sub-stantiar d * efects in them. We think the issue of negligence was fully covered by the instructions of the-court, and - that it *as unnecessary to give those asked 'by' appellant bearing npon that issue. ' We-cannOt agree with learned counsel for appellant • that . the verdict is excessive. There is testimony in the :record tending to shOw that appellee was-unable' to do any work from July. 9th, the date of his injury, until about: the middle of October , folloWing; that he Suffered Mitch pain mentally and physically -and that at the time of the trial, about a year after the injury, he Was unable to do heavy labor on account of his foot. No error appearing; the judgment is affirmed.
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