Atik:] KURN, 'ET AL:, ' TRUSTEES 'ST.. 'LOUIS, SAN 687
FRANCISCO RAILROAD : COMPANY : V. TEAGUE'.
KURN, ET AL., TRUSTEES ST. L., 'S. F. H. Co., V. TEAGUE. • 4-4249, • Opinion 'delivered May' 4; 1936. • MASTEli AND SERVANT—isT GLINCE. -In negligence cases . the diitY • rests' upon 'the plaintiff to establish .gome default Ori the' part' of the Master, some ' ,omission . to d6 what he should have 'done, or • • proof of some !act done 'that should not hOre -been done, whereby ,the. mas , ter becomes , liable. , A failure to prove actionable . negli: • gence sh6uld , always , result in a verdict for . the defendant. . MASTni AND SEaVANT—INSUFt'ICIENCY 014 .action against' railroad coinPanY- to recover dainages' f6r personal in-' . juries sustained, in an attempt •to use , an improvised brake, evi-• dence held not to establish negligence,on. part of defendant. 3. ,Tw.m., INsTRucnoNs. After,.motion for directed verdict was oyerruled, , counsel had the right to protect, as •far as , they were able, the rights of 'the defendants, hy asking for other instructioria 'upon the theery adePted ' by the cmirt in' the submisSiOn' Of the case 16 the : jury: • ' • • '.• • • Appeal from •Crawfoi'd, Cit'cuit Court; J. 0. Kinocint-non,. Judge ; reversed. • J..W. JamisoRand , Ka,rn. er & Wapier, for appellants,. •Partair.;& Agee, for ,appellee. • BAKER,4. This is an appeal.from,a judgment of.tlw circuit court in the .sum. of $3,500 for, injuries, alleged tp have •been redeived by the• appellee ..on Jnly 13, 1934., while . employed as a. laboyer with, a bridge crew.. . . 'The view We have • of- .this case is snch that we think it 'unnecessary to : set forth. with any great detail the evi-dence-in the ' case., : rot' that reason , only a sufficient statar-Ment : will be made : to predent and settle . the controverted_ propositions. : . • : • . • "The:foreman,: had• his , drew of biidge :ear-pen'ters wOrk Iernoviii bridge : thnbers 'ff. dm a tiestle on the' maM line Of tim 'St. tonid San • Ftanciseo Railtdad COmpany; 'about tWo 'and' a half Miles' -nOtth berg, A short distance 'south Of the'' WinsloW' These bri'dge tiMbers were :rathei" large, being 8 -*x 16 inched and '28 feet long. They were to' he shipped afte r the remoVul of the bridgeiand •for that-reason weteloaded On a push-car : to be : ha-tiled' to' the Station or shipping poMt; -This shipping Point was -perhaps -• about two'!o'r
688 KURN, ET AL., TRUSTEES ST. LOUIS, SAN [192
FRANCISCO RAILROAD COMPANY V. TEAGUE. three miles from the bridge, from which the timbers were taken, down a steep grade. The plan or system used to move these timbers was to load them upon a push-car which consisted of the frame-work and trucks, and this car was placed behind a motor-car, though not connected to it by ropes or other coupling. The motor-car had mechanical brakes, by which its speed could be controlled down a grade. Also, the push-car, which when loaded weighed about five tons, was to a certain extent controlled by the motor-car. The piish-car had no brakes. The push-car consisted of two stringers resting upon the trucks and these stringers were joined by cross-pieces or timbers near the wheels or trucks, which were placed af each end. The -Crosspiece§ or timberS joining the side-timber s ' or stringers extended out beyond the side-timbers so that the ends of them were about even or flush with the outside of•the wheels. The distance from the rim of the wheel to the cross-piece on each side of the wheel was about six or seven inches. As a device fOr auxiliary braking, a piece • of timber or scantling 2 x 4 inches and 7 feet- long was used. It was prepared . for use under the direction of the foreman Bradley. Preparation, however, consisted of driving a large nail—sixty-penny—or spike, near the end of the scantling, perhaps six or s6 T en inches away from the end. In the use of this appliance•or piece of timber with the nail in it, it was inserted or placed under the end of one of the cross-pieces in front of one of the wheels, the nail resting against the cross-piece so as to prevent the scantling or timber from going forward, then by lowering the other end the scantling was brought in contact with the wheel. The appellee, Nolen Teague, used this auxiliary brake on the evening of the 12th of July,- the day before he was injured. He sat or rode on the frame-work on the push-car, or on the timbers loaded thereon, placed the piece of timber under the cross-piece of the frame-work of the push-car, lowered • the timber until it came in contact with the rim of the wheel, and l)y the amount of pressure or weight applied thereon he governed the speed of the push-car down the grade. He was an experienced section hand, of such age and intelli-
ARK.] KURN, ET AL., TRUSTEES * ST. LOUIS, SAN 689 FRANCISCO RAILROAD COMPANY V. TEAGUE. - gence, at least, to do his work as well as the average and ordinary man. He knew, as every railroad man must know, that the diameter of the wheels of the truck of this push-car, was greater at the flange or inside edge than at the outside edge and that as he held his, auxiliary brake upon top of this wheel the probable tendency, on account of this difference in diameter, woUld be to move or gradually work the auxiliary brake toward the out:- side edge when it would have to be moved back to the flange or inside edge of the wheel. The 'evidence is beyond dispute that push-cars of this type are not supplied-with -brakeS ; that the- men Who operate these cars devise or supply brakes when the occasion or necessity calls -for them. The , one in use on this occasion Was of the type ordinarily used, such brake generally consisting Of a piece of timber of this' kind used, or a pole whereby the pressure could be applied so as to control the action or moliement of the Push-car. In this case the nail or spike 'that was driven , into the 2 x 4 piece of timber was . driven nearly, but not quite through the scantling, , and in the use of the timber as a brake the point . of the nail came practically or alMost directly over the top of the - wheel' upori which it was used as a brake. In the use thereof, the friction of the wheel grinding or rubbing against the bottom side of the timber gradually wore the timber down until the nail was exposed and the point of it came in contact With the wheel. An examination of the braking device, 'after the accident, disclosed , this fact.' The appellee testified that he heard the scratchino or gratino noise a the contact of the nail upon the rim of the wheel. ' ••: The evidence shows that at the time of the injury •the push-car had been loaded with timbers weighing eight or nine thousand pounds ; that it was going down grade 'behind, but not fastened to the 'motor-oar. Two men were riding upon the . Push-car, some . others upon the motor-car, having it under control. Sometimes the motor-car ran slightly ahead of the push-car. Whether this was occasioned by the speed of the motor-ear or by reason of the retarding effect of the scantling brake upon the push-car, .does not appear from the evi-
690 KURN, ET AL., TRUSTEES S. LOUIS, SAN [192 FRANCISCO RAILROAD COMPANY V. TEAGUE. dence, nor does it make any difference, as there is .no , evidence that it ever was sufficiently far away as to cause any danger, or that this condition in any. wise brought about the accident. Teague testified that he could see the end of the scantling where it . rested upon the wheel. .He conld, therefore, tell if the scantling were properly placed oVer the wheel or was working off to the side. His explanation as to how the accident occurred is that they were moving along about ten or twelve miles an hour. Ete was using this brake stick; that he could hear the grating sound of the nail upon the wheel and that 'suddenly the brake stick "was jerked" so that it came off on the edge of the wheel and the end struck the ground'or chat making up the road-bed. The effect of the end of the brake stick striking the ground was sUch that the other end struck him in the side, knocked him off the push-car and caused the injury for which he sued. The use of this brake stick required, no skill or art,. Its oi)eration was a matter of attention on the part of the laborer, the amount of braking force depending . entirely upon the pressure or weight exerted to control the speed. It operated exactly on the same principte that section hands apply every day with a clawbar the removal of spikes, or of a pry-pole used to raise any heavy object. One of the theories upon which this case has .been presented is that the instrumentality was a simple tool and that in the use of such simple tool the master owes no duty to inspect, or would not be guilty of negligence by reason of any defects, the existence of which a laborer presumptively would know about as well as the master. We pretermit a discussion of the simple tool theory. We think it has no application here. In negligence CaSes, the duty rests upon the plaintiff to establish sothe default on the part of the master, some omission to do what he should have done, or proof of some act done that should not have been done, whereby the master becomes liable. A failure to prove actionable negligence should always result in a verdict for the defendant.
ARE.] KI/RN, ET AL., TRUSTEES ST. LOUIS, SAN 691
FRANCISCO RAILROAD COMPANY IV. TEAGUE. We think the plaintiff has wholly failed in this case to establish any degree of negligence on the part of the defendant. Plaintiff relies on the proposition that the nail was driven nearly or almost through the 2 x 4 piece of 'timber and that the timber wore away so that the 'point of the nail was so exposed as to rub upon the rim .of •the wheel. That fact is undisputed, but it is no explanation . of the further- fact that the brake timber :slipped, or came off the wheel and struck the ground. Of course,.he.knew that in :the operation of this brake timber he could lighten the pressure upon it, slip it back to -the flange of- the- wheel; did- that-perhaps-many -times: His exPlanation is that as he heard the grating noise of the contact of the nail with the, metal part of the wheel that the brake timber "was jerked off the wheel." If he knew what jerked it off he does not explain. Nobody else does. Only by guess . work, surmise or conjecture May there be any explanation of the so-called "jerk." This would not justify a recovery. From the facts proved there is no inference of any other 'matter or fact tending to show negligence of the .master. We might assume, in trying to explain the "jerk," that there was a roughened place upon the wheel with which the nail came in contact, or that it was caused by a , jolt at a high joint, or some slight obstruction upon the rail, but such matters are the purest speculation about which there is neither allegation nor proof. We have said frequently that such speculation cannot become the basis of a verdict. Lewis v. Jackson, 191 Ark. 102; 106; 83 S. W. (2d) 69 ; Turner v. Hot Springs St. Ry. Ark. 894, 75 . S. W. (2d) 675. In the realm of speculation we think it much more highly probable that at a moment of inattention the appellee permitted the brake stick to slip off the wheel and that this was the "jerk" 'he felt, so at an instant later, by contact with the ground, it caused his injuries. ..The defendants asked the court, at the close of the testimony . to direct a verdict in their behalf. The court, 'erred in not dOing so. It is true that, after the court had_ refused to direct a verdict on behalf of the defendants, they asked other, instructiOns, thirty-five or more,
692 [192 and if there were other error in any matter in. the presentation. of this case, the voluminous lot of instructions probably covered such al]eged errer and: cured the same. However, that was not a waiver upon the part of the defendants, after having asked a directed verdict. They may have convinced- the jury, by the numerous instruc: tions, that their ease was much more dangerous than it really was. However, counsel had a right to protect, as far as they were able, the rights of the defendants upon the theory adopted by the court in the submission of the case. Arkansas Power & Light Co. v. Hubbard, 181 Ark. 886,.891, 28 S. W. (2d) 710. This case has been thoroughly and fully presented. Since there is no showing of negligence, it is unnecessary to remand for a new trial on account of the error above-mentioned. The judgment is, therefore, reversed, and the cause is dismissed.
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.