Gurdon & Fort Smith Railway Co. v. Calhoun

Wood, J., (after stating the facts.) First. The Dalhoff Construction Company asked the court to instruct the jury to return a verdict in its favor. It also asked the following: “The jury is instructed that if it finds that tlie Dalhoff Construction Company was not in control of and operating the construction train over the bridge at the time of the injury, but that the same was being operated by the railroad company in carrying on its own business, and that t'he Dalhoff Construction Company had nothing to do with the loading of the tie-jack, which caused the injury, on said train, then your verdict should be in favor of the defendant, the Dalhoff Construction Company.” The court, upon the undisputed facts, should have granted these requests, and it was prejudicial error to refuse them. There was no evidence to warrant the finding of negligence on the part of the Construction Company. It had nothing whatever to do with the work of placing ties and láying steel, in which work the construction train was engaged at the time appellee received 'his injuries. The work of placing ties and laying steel was exclusively the contract of the railway company. It was operating the train from which the “tie-jack” fell that injured appellee. If there was any negligence that caused the injury to appellee, it was the negligence of the appellant railway company; for it alone -was responsible for the loading of the tie-jack, and the management and operation of the train from which the tie-jack fell. The mere request of the Construction Company to the Railway Company for the latter to do the work of laying the steel earlier than it otherwise would have done, in order to accommodate the Construction Company, did not render that company liable for any negligence on the part of the Railway Company resulting in the injury to appellee. There were no contractual relations between the Construction Company and the Railway Company, and the latter company in yielding to the request of the former 'was doing it as a simple act of kindness. The making.the request by the one and the granting it by the other did not create the relation of principal and agent or master and servant, and did not make them joint tort feasors. Therefore, in our opinion, upon the undisputed facts, if there was actionable negligence, the Railway Company alone was responsible for it. The rule requiring the master to exercise ordinary care to provide a safe place and appliances for his servant -and to warn him of latent dangers, etc., ha.s no application to the facts of this case, for the reason that the construction company had provided appellee a safe place. There is no evidence to show that it was not safe. There were no latent dangers of which it was incumbent on the Construction Company to warn appellee. Appellee was perfectly familiar with the work, and such danger as there was from the location of the tie-jack on the car was as obvious to him as to the Construction Company. It is unnecessary, therefore, to consider other rulings of the court bearing upon the liability of the appellant Construction Company. The proof was not sufficient to sustain the judgment as to the Construction Company, and it is reversed as to it, and the cause is dismissed. Second. The appellant Railway Company contends that the injury complained of was not caused by the running of its train, in the sense of- the Constitution and statute making railroads liable for the damage done by the running of trains. But it is unnecessary to pass on this question, for the uncontroverted facts raised the presumption of negligence. Appellee was in a place where he had a right to be. It was a safe place until made dangerous by the presence and operation of the train over which appellant; railway company had the exclusive management and control. The falling of a “tie-jack,” weighing three hundred pounds, from the car could not well have happened in the usual course unless there had been some negligence in loading it on the car in the first place, or in the manner in which the train was operated and the car was moved, in the second place. Such an implement, if handled with ordinary care, could not fall from the car in the usual and ordinary method of its use as shown by the proof. The fact, then, that it did fall raises the presumption of negligence, and the doctrine of res ipsa loquitur applies. See Price v. St. Louis, I. M. & S. Ry. Co., 75 Ark. 479-491; Choctaw, O. & G. Rd. Co. v. Dougherty, 77 Ark. 1; Arkansas Tel. Co. v. Ratteree, 57 Ark. 429; Railway Company v. Hopkins, 54 Ark. 209; 4 Elliott, Railroads, § 1644; Bice v. Wheeling Electrical Co., 59 S. E. 626. The court instructed the jury that the fact that the jack fell off at the time, as testified to, raises no presumption that the persons in charge of. the train were .negligent. The appellant contends that under this instruction the verdict was erroneous. The instruction was not the law applicable to the facts proved. But the verdict of the jury was supported by sufficient evidence, had they been correctly instructed. We can not reverse a judgment that is based upon a correct verdict because the court below gave an erroneous instruction more favorable to appellant than it was entitled to. Southern Cotton Oil Co. v. Spotts, 77 Ark. 458. The verdict and judgment were right, notwithstanding ’the. erroneous instruction. The appellee alleged that the falling of the tie-jack broke his nose, split his upper lip and broke or mashed the cord of his upper lip so that he lost the use of his upper lip, broke his wrist, and otherwise injured and disabled him; that by reason of said injuries he suffered great bodily, and mental pain, and has been permanently disfigured and disabled. There was evidence to sustain these allegations. The judgment is affirmed.