Jewel Coal Mining Company v. Whitner

Hart, J., (after stating the facts). The principal reliance of the defendant for reversal of the judgment is that the court erred in refusing to direct a verdict in its favor. In the first place, it is insisted that there wias no negligence on the part of the defendant. Counsel for the defendant point to the fact that several witnesses testified that the rock in question did not protrude over the car track, and that, if the plaintiff had been sitting in the middle of the front end of the front car, he would not have been injured. It is inferable from other evidence on the part of the defendant that the plaintiff turned to look over his left shoulder to see if anything was wrong with any of the train of cars on which he was riding, and that he, in turning, displaced the lumps of coal upon which he was sitting and thereby caused himself to fall and sustain the injuries for which he is now suing. Under the settled rules of this court it is not our duty to weigh testimony on any given point at issue; but we must take the verdict of the jury as settling the facts, if there is any testimony of a substantial character to sustain it. In the case at bar, on the question of negligence, the plaintiff testified that he was not guilty of negligence in looking back to see if anything was wrong with any of the coal cars, and that, in doing so, his hip was canght in a rock which protruded over the track, and in this way he was dragged from the car and severely injured. The plaintiff further testified that he was sitting in the middle of the front end of the front car, where it was his duty to sit while driving, ,and that he had fixed his seat so that coal would not topple off and cause him to fall when he should look back. His testimony as to the rock protruding over the track to a certain extent was corroborated by the testimony of another witness. This evidence, if believed by the jury, was sufficient to warrant it in finding that the defendant was guilty of negligence. It is earnestly insisted, however, by counsel for the defendant, that the court should declare as ia matter of law that the plaintiff assumed the risk, and therefore was not entitled to recover. It is true, as contended by counsel, where the danger is so obvious that knowledge of it and appreciation thereof should be imputed to the servant, the court should declare as a matter of law that he is not entitled to recover against the master. It is equally well settled that assumption of risk is not predicable from knowledge of the conditions alone. While the "appreciation of the danger is often inferred from complete knowledge on the part of the servant, yet, if the knowledge possessed by the servant is not such as to necessarily malm him appreciate the danger of his work, his action for injuries will not be barred. Brackett v. Queen, 162 Ark. 525. In the application of these settled principles of law to the facts in the case at bar, we do not think it can be said as a matter of law that the plaintiff knew of and appreciated the dangerous condition of the entry, and thereby assumed the risk. Of course, under the evidence for the defendant, the jury might have found that the position of the rock protruding over the track was apparent to the plaintiff, and as a man of ordinary intelligence he must have observed and realized the danger. It was shown by the witnesses for the defendant that the plaintiff had gone along all the entries the day before he commenced driving in order to familiarize himself with them, and the plaintiff himself admitted that he had driven one trip along the entry in question before he was injured. The jury might have found against him on the question of assumption of risk under this evidence; but it cannot be said as a matter of law that it .was undisputed. The primary purpose of the plaintiff in going along the entries was to familiarize himself with conditions generally, so as to enable himself to better discharge his duties as driver of a coal-car. He was not required to make an inspection to see if rocks protruded over the tracks, making it dangerous for him to drive there. He might have noticed the rough surface of the rocks, and yet not have realized that one of them protruded so far over the tracks that it would be dangerous for him to turn around to see if anything had happened to one of the oars attached to the train he was driving. Then too the fact that the plaintiff had made one trip along there before he was hurt is not conclusive evidence that he knew the dangerous condition of the place. His duties as driver might have required him to turn his head in the other direction while passing the rock in question, and it thereby escaped his notice. Then too he might have been sitting on the right side of the front end of the front car, and on this account did not see the rock and appreciate the danger therefrom. The fact that he was negligent in riding on the right-hand side of the car on the first trip would not preclude him from recovering on the ground of assumption of risk,' or of contributory negligence. The result of our views is that, when the evidence is considered in the light most favorable to the plaintiff, it cannot be said that the court erred in refusing to direct a verdict for the defendant. . , The next ground for a reversal of the judgment is that the circuit court erred in not granting him a new trial on the ground of newly discovered evidence. On this point the defendant introduced affidavits of two of its servants, who stated that, after the plaintiff was injured, and before be left tbe mine, be told them that be was sitting on tbe left-band corner of tbe car on a lump of coal; that be turned to look back to see wbat was wrong with one of tbe -cars, and that tbe lump of coal on which be was sitting rolled and threw him off of tbe car, and that be fell between tbe car and the wall of tbe entry, and in that way got squeezed. Tbe record shows that tbe trial did not take place in tbe circuit court until nearly a yéar after the injury occurred. The two newly discovered witnesses were fellow-servants of tbe plaintiff, and, if a full and complete investigation bad been made, it is probable that tbe newly discovered evidence would have been obtained at the trial. It is true that tbe witnesses said that they had agreed not to tell any one because they did not want to -be witnesses; but at the same time it is reasonable to presume that, if a proper investigation bad been made, they would have told wbat they knew. Tbe motion for a new trial addressed itself to tbe sound discretion of tbe trial court, and, under tbe ruling in Arkadelphia Lumber Co. v. Posey, 74 Ark. 377, it can not be said that tbe circuit -court erred in refusing to grant -a new trial on the ground of newly discovered evidence. Therefore tbe judgment will be affirmed.