A. J. Neimeyer Lumber Co. v. Watson

HART, J., (after stating the facts). It is insisted by counsel for the defendant' that under the facts disclosed by the record, that the defendant was not guilty of negligence and that the injury received by the plaintiff in making the coupling was one of the ordinary risks of his occupation as a brakeman which he assumed when he entered the employment of the defendant. It was the duty of the defendant to exercise ordinary care to furnish a locomotive engine and track suitable for the work which it required the plaintiff to perform and it was responsible to the plaintiff for an injury resulting from its negligence or want of ordinary care in this respect. The plaintiff, however, by entering the service of the defendant as a brakeman, assumed all the risks ordinarily incident to that work so far as such risks were known to him or could have been known by the exercise of ordinary or reasonable care. Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, and Fletcher v. Freeman-Smith Lumber Co., 98 Ark. 202. In the St. Louis, Iron Mountain & Southern Ry. Co. v. Higgins, 44 Ark. 293, the court sustained the rule that it is not negligence for a railway company to use its own, or those of another company in regular transportation of freight, cars constructed with uneven couplings. Other cases recognizing the rule may be found in a note to 26 Cyc. p. 1194. Watson was twenty-one years of age and had been working for the company for two years. He had been acting as brakeman, coupling cars to this same engine for two months: He knew that reach-bars only 14 inches long were being used on it and made no complaint. He had in fact coupled cars to the engine with a reach-bar only 14 inches long. The risk which there was in coupling cars to the engine under such circumstances required no special skill or knowledge to detect. The danger was obvious and apparent to any one, and it must be held that it was one of the risks which the plaintiff assumed in entering upon the service. Again it is insisted by the plaintiff that the injury occurred because of the uneven surface of the track which placed the car upon a higher level than the engine, and thus made the reach-bar .too short. The plaintiff •had been in the employment of the defendant for two years engaged in loading logs on cars. He knew that the ties were laid down on the ground and the rails placed on them and that but little attention was given to the grading of the roadbed. !.Watson had been engaged in the work of coupling cars to this engine on this log road for about two months before the accident and was perfectly familiar with the tracks and condition of the roadbed. The plaintiff was not inexperienced in the business but was a man doing the ordinary work which he had been employed to do and whose risks in this respect were obvious to any one. Under the circumstances of this case he assumed the risk of an accident like the one in question and no negligence can be attributed to the defendant. It follows, therefore, that the court erred in not directing a verdict for the defendant and for that error the judgment must be reversed. Inasmuch as the case has been fully developed, it will not be necessary to remand it for a new trial, and it will be dismissed here. It is so ordered.