Western Coal & Mining Co. v. Garner

112 S.W. 392, 87 Ark. 190, 1908 Ark. LEXIS 44

• Court: Supreme Court of Arkansas
• Decided: July 13, 1908
• Status: Published

Opinion

Wood, J.,

(after stating the facts.) It is not shown that the appellant was negligent in the matter of placing the powder for distribution to the employees in the mine. It “had to be unloaded at some point for distribution, and the junction point had been made the point of distribution for three years.” Presumably, this was selected as the distributing point because it was regarded at the most suitable and convenient location. It is not shown that there was any danger to the employees by reason of the place where the powder was stored or kept. The danger, if any, was in the way the powder was handled. But if there was danger to the operatives by reason of the powder being located for distribution at the point designated, it was a palpable risk or danger which they assumed, when they congregated about it. If there was danger in the place of storing, it was such a danger as no employee would be warranted in assuming for one moment, even under a promise of the master to remedy, or discontinue. If we should concede that there might have been danger in connection with the location of the powder, it was a danger absolutely necessary to the business, and one that the employees assumed when they entered upon the employment. The evidence does not warrant a finding of negligence against the appellant “in permitting a large amount of powder to be' stored in the entry under' and near the electric wires,” as charged in the complaint.

There was no danger of an explosion being produced by the electric wires coming in contact with the powder, provided the - wires were properly erected and insulated. So the proximate cause of the injury complained of in this case, if it resulted in the manner set up in t'he complaint, was by the crossing of the electric wires, and the actionable negligence, if any, was in not properly erecting the wires. But in our opinion the evidence fails to show a cause of action in this particular. This is not a case where the doctrine of res ipsa loquitur applies. T'he proof affirmatively shows without contradiction that the wires were properly separated when erected, and that there was no reason to contemplate that they could become crossed in so short a time after they were erected. A sufficient time had not elapsed for the decay of the cleats or blocks that sep-arated the wires. There was no reason to anticipate that they should -become loose and cross each other in the time intervening their erection and the accident. They were shown -to be in perfect order but a short while before the accident. The appellees do not show that the wires were in such condition before the accident that the exercise of ordinary care in their inspection would have discovered any defect. Mammoth Vein Coal Co. v. Looper, post p. 217.

Negligence can not be presumed, under the facts shown here, from the mere happening of the accident. St. Louis, I. M. & S. Ry. Co. v. Andrews, 79 Ark. 439; St. Louis & S. F. Rd. Co. v. Wells, 82 Ark. 372, and cases cited.

The • proof does not disclose that in the usual course the accident could not have happened but for appellant’s negligence. On the contrary, the evidence shows that men were gathered about the powder can smoking, and that this was not an unusual occurrence. That undisputed fact itself furnishes-a most reasonable explanation of how the accident might have happened, aside from any negligence of appellant.

So we are of opinion, upon the whole record, that there is no evidence to sustain the verdict. The judgment is therefore reversed, and the cause remanded for new trial,