READER RAILROAD V. SANDERS. [192 READER RAILROAD V. SANDERS. 4-4094 Opinion delivered January 20, 1936. 1. MASTER AND SERVANT—ASSUMED RISK.—Where a mechanic called the superintendent's attention to a dangerous tree leaning over the shop where he worked, and the superintendent promised to remove the tree, the mechanic did not assume the risk by continuing to work for a reasonable time. 2. MASTER AND SERVANT—ASSUMED RISK.—Whether a mechanic assumed the risk of a tree leaning over his shop which fell and injured him held for the jury. 3. APPEAL AND ERROR—CONCLUSIVENESS OF VERDICT:—A verdict on conflicting evidence will not be set aside as being against the preponderance of the evidence. 4. NEGLIGENCE—JURY QUESTION.—The existence of negligence is always a question for the jury unless the acts complained of are declared by law to be negligent per se or unless all reasonable minds must conclude that the acts were necessarily negligent. 5. DAMAGES—EXCESSIVENESS.—An award of $45,000 to a mechanic 35 years old earning $225 per month, who was unable to earn anything after receiving permanent injuries to his legs and severe injuries to the nerves of the lower limbs, groin, rectum, buttocks and privates, held not excessive. 6. JUDGMENT—DEDUCTION.—Where the jury intended that the entire amount paid to plaintiff and for his benefit by defendant should be deducted from the verdict, a judgment which merely deducted advances made directly to the plaintiff will be reformed by deducting the entire amount paid to plaintiff and for his benefit. Appeal from Nevada Circuit Court; Dexter Bush, Judge; modified and affirmed. Action by C. S. Sanders against the Reader Railroad and Ray Oliver. From an adverse judgment the railroad has appealed. Gaughan, Sifford, Godwin & Gaughan and McRae & Tompkins, for appellants. Pace & Davis, Wm. P. Denman and . Tom W. Camp-bell, for appellee. MEHAFFY, J. The appellee filed suit in the Nevada Circuit Court against the appellant, alleging tha.t he was shop foreman and master mechanic, and that, while he was standing on the running board of an .engine the shop on March 21, 1932, a tree fell upon the shop roof, mashing in the sheet-iron roof, and that certain ■
ARK.] READER RAILROAD V. SANDERS. 99 rafters or pieces of .limbs struck him on the head, knocking him from the running board to the floor, where he fell across a carpenter's horse, severely injuring him. He alleged that the injury was caused by the joint and concurring negligence of appellant and Ray Oliver, its agent and servant; that Oliver 'selected the location for the railroad shop and constructed the same; that there was a large' black-gum tree standing near and leaning over the shop, and that prior to the. construction of the shop Oliver had raised into position a heavy tank, by Means of a block and tackle attached and anchored to said tree by means of a wire cable or chain, which was tied around the tree twenty or thirty feet above the ground; that when the tank was raised the wire cable' cut into the tree to such an extent that the cable could not be removed, and it was cut and left embedded in the tree; that the tree was weakened and Made dangerous by being cut by the cable; that Oliver's attention was called to the condition of the tree by appellee, and te the danger, and appellee asked Oliver to remove the tree; that a complaint and promise to remove was made about a week or ten days prior to the date the tree fell; that appellee relied on Oliver's order to continue his work and continued his work in the shop under Oliver's promise to remove the tree, and Was so engaged when the tree fell and injured him; that his injuries are permanent. The appellant filed motion •to quash service, which was overruled by the court, and Oliver filed motion to make the complaint mere definite and certain. This motion was complied with. The appellant ansWered 'denying the allegations in the complaint and pleading assumed risk, and also alleged that appellee was guilty of negligence in perinitting the. tree to remain there. It further alleged that the tree fell as the result of an unusual and violent wind storm, an act of God, and not-. as a. result of being. weakened by the cable or chain- cut. Appellant alleged that it had paid to appellee $7,326.16. • • Oliver • filed separate answer denying the material allegations of the complaint; and also alleging the contributory negligence of appellee, and that his right to
30 READER RAILROAD V. SANDERS.' [192 recover against . him was barred by the statute of limitations.. There was a verdict.and judgment for $41,350. The Case is here on appeal. . A,ppellant.contends that the court erred . in .refusing to direct a verdict for the •defendants because Sanders, assumed the risk. The evidence shows that Sanders had complained several times •about the tree • being dangerous, and he testified that six or 'seven . days before the accident he said to Oliver : "There is nothing 'to keep you from . cutting that tree down and getting it out of the way," and ,Oliver said : Tight, Sanders. I'll get Joe Berry and his crew around here in a day or two and an engine, and Cut it down : and get it off your mind." He further testified: that he relied' on this promise of Oliver.' Appellee had • called OliVer's attention to' the tree six months before the accident, and then.again approximately three months, but the time that he called his. attention to it and :Oliver proMised to remove the tree, was six or seven days before the accident. Doubt-less- the. tree had become more weakened and More dangerous as time Went on, and had become so •weakened at the tithe Sanders last spoke' to OliVer about it, that it Was dangerous, and for that . reason Oliver agreed to re-: move it. Appellee testified that Oliver Was superintendent and that he was under Oliver: It could not; however, be removed immediately, because, in•order to remove it, it wa g necessary .tO:' get an engine: and Berry . 's. crew. Oliver, having expressly promised to remove the tree, the appellee had a right to assume Alla he would do this. within -a reasonable time, and did not assume the. risk within such, a period of time after the . promise as would be reasonably allowed for removing the tree. The situation was such that he could not go out and move . it immediately, ,but, 'as we have said, it .was- necessary to get an engine' and to get Joe Berry and his crew. We think the appellee had the right to continue to work without. assuming the risk within such time after the promise as it would reasonably require to remove the tree. Western Coal & Mining Company v. Burns, 84 Ark. 74,- 104 S. W. 535; Simms Oil Co. v. Durham, 180 Ark. 366;
READER •RAILROAD v SAIVDER. 31 21 S. W. (2d) , 861; St. L. I. M.. & S. 1 :1?).:C6. v. HOlman, 90
Ark. : 555, • 120 S. W. : 146. • • • In *the casc of St. L. I. 111..& S. Ry..Co. v. Holman, supra, the court said: "The effect of a promise to repair.by the master and of the continuance , in his service by the servant .in reliance upon the promise, is, to create a new stipulation whereby:the master assumes the. risk impendent during , the.time specified , for the repairs to be, made. Where no : definite period :is:specified which ,the given defeCts are ,tp : be .. reinedied, the suspension, of the master's .right , to avail himself, of the :de, fense of .assumption of the , risk by the servant :continueS for a reasonable : time., , No matter: how. obvious ,the. de, fects . or.how imminent the perils . therefrom,.the,servant; pending the promise of the : thaster to : repair,'does not assume the risk . of the given defects by continuing in ,the master's serviCe in reliance , upon his promise." The court also, in : the same .case said:. "Fov it can, not be said that the* servant has voluntarily assumed the risk .of the impending danger of working in an unsafe pluee, or, of •the .use. of obviously.defective appliances furnished by . themaster, where the .servant 'has:complained to the master of : such defective . conditions, and agrees to , and does continue . in . his service upon. tile . proinise of the master 'within the, tithe : specified, or a , reasonable time if none . is : specified, .to restore the place , or appliances,to normally safe conditions." . , Numerous authorities might be cited, but it is, sufficient to say thUt : the settled 'rule , of thiS , 'cotirt is that where the- servant -116. called 'the' attention of' the Master to the defect and the master:had promised to repair,' the' servant, by Continuing the,'WOrk*fof 'a reasonable tithe, (Ides not . * asSume the' risk: ' ' " . *There . waS . som . e- cenfliCt in' the evidence,' 414 'thi.§ Was thereforeu queStionfor thejury. This doctrine-WaS recognized in the inStrtictiOn requestedby : aPpellant and giVen; by the :court, which .i*s'as'follOWS • "If 'You find : Troth 'the evidence • that' the tree waS cable or chain cut to such an extent that it waS'dahgCr-ous to the then-working the : Shop, : and that Sanders knew this was -trUe; : and you Turther ! find 'that Sanders
32 READER RAILROAD V. SANDERS. [192 continued working in the shop without complaint or objection, then he assumed all risk and dangers arising from said tree, and your verdict- should be for the def dants. " According to the evidence of appellee, however, Sanders did not continue working without objection, but objected, and the master promised to repair. The court, at the request of the appellant, also gave instruction .No. 14 which told the jury in effect that if Sanders knew the condition of the tree and had complained to Oliver, and if they further find that a hard March wind was blowing which increased the danger and made the danger . so 'imminent and obvious that a reasonably prudent person would not have continued working in the shop until the'ttee Was cut down, and if they frirther found that Sanders did not stop but continued working, then he was not entitled to recover. There is 'a good deal of conflict in the evidence about the wind, but they were plainly told in the fourteenth instruction that if the danger was so imminent and obvious that a reasonably prudent person would not have continued working, Sanders could not recover. Appellant calls attention , to several authorities to the effect that where the servant has full knowledge of the Meet, and where the defect could have been remedied in a few hours, he assinned the risk by staying an unreasonable length of time. In all cases where there is a conflict of • evidence the question of assumed risk is for the jury, and this court cannot set aside a verdict because it may think it is against the preponderance of the evidence. It is next contended by the appellant that the court erred in refusing to direct a verdict for Ray Oliver because of the contributory negligence of Sanders. Instruction No. 9, requested by appellant and given by the court, submitted to the jury the question of Sanders' negligence, and the jury found against appellant's contention. This court has said: "The existence of negligence is always a question for the jury unless the acts corn-
ARE, READER r RAILROAD V.. SANDERS. 33 plained of re declared by laW • to be negligent per se, or unless all reasonable minds , must -conclude, that the nets were necessarily negligent." , Keller v . While,,173 Ark. 885, 293 S. .W..1017. 'is neXt contended that the court erred i . n' . giv . ing certain instructiOnS. and in refrisihg tO give certam Other instructions. We do not discuss: , the instruCtionS in , detail, but we have carefully considered all.the.instructions and have reached the' conclusion That the Cha* . rg na.'a whole was a correct gUide-for" the jury and that the court coMmitted no errOr in giVing or refusing to give instructions. • , . It is next contended that ..the verdict, is excessive. Appellee testified that : he. was standing upon the run- ning board on the left side . of . the engine, nnd all of n sudden a crash Came...When this crash . came something struck him On , the left side . of his: head, knocked him , off the . engine, and in falling he struck . his left hip and'lower part , of his back . across a carpenter's horse, 42 or 14 inches , high; lmocked him unconscious ; did not . kno,w what happened to him . ;: , he , was . then treated by poetoi: Hesterly ; :was in . the hospital . at Prescott 21 days ; hip and back hurt so badly he couldnot_sit up., and : had . headaches until he could hardly see; could not walk. He was then sent to Hot :Springs by the advice- of Dr. Hesterly, find at Hot Spring's they . Sent him to . the . Ozark Sanitarium,' Where . he staYed about three monthS, : and he .is Still under the treatment of Dr. , SCully: Before . he was injured he, was a . strOng,. healthy man, 35 : years Uhl, had been draWing'$225 - Per Month up tO a short time before he was injured, and has been trying . tO' g't Vell. The pain set up immediately' after the aOcident and continued to. get' worSe. - The iniser , was' so bad' that he' Could 'not stand it until they gave him medicine to relieve' the pain.; he finally went into convulsions ; had headaches so severe that they could hardly hold him in bed; his eye was swollen; he testified also tha.t if he were to try to walk a. quarter of a mile today he could not get out of bed tomorrow; his legs have practically no feeling in them; he has never been able to earn a. dollar since the injury.
34 READER RAILROAD V. SANDERS. [192 Dr. Scully testified tbat when he was called Sanders was unable to walk, and was in a semistupor. He testified at length about his treatment and about appellee's injuries, and that his injuries were permanent. . Dr. McGill testified to substantially the same conditions testified to by Dr. Scully, and Dr..McGill also testified that the appellee had severe injuries to his nerves, including the nerves of the lower limbs, groin, rectum, buttocks and privates. When appellee's injuries are considered, the amount he•was earning, the fact that he is unable to earn any- thing now, and also that his injuries are permanent, and when his pain and suffering a_re considered,- we do not think the verdict is excessive. But the evidence shows that the appellant had already paid to him and for him $7,326.16, and also shows that when the verdict was returned, the jury was asked if they hitended to deduct the advances made to appel-lee by appellant, from the $45,000. The jury answered in the affirmative. There was some discussion then .as to whether the part paid directly to appellee, or the entire amount paid to him and for his benefit should be deducted. It is our conclusion from the questions asked the jury and the answers by the foreman of the jury, that it was the intention of the jury to render a verdict-for $45,000 less the entire amount paid. • The court entered judgment for the amount, $45,000, less the . amount paid directly to the appellee. We think this is error and the court should have entered judgment for the $45,000 less the entire amount paid, which would leave $37,673.84... The judgment will be modified by reducing the amount to $37,673.84, and, as thus modified, the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.