Chapman & Dewey Lumber Co. v. Hanks

• Decision Date: 10 October 1939
• Docket Number: No. 7800.,7800.
• Citation: 106 F.2d 482
• Parties: CHAPMAN & DEWEY LUMBER CO. v. HANKS.
• Court: U.S. Court of Appeals — Sixth Circuit

106 F.2d 482 (1939)

CHAPMAN & DEWEY LUMBER CO. v. HANKS.

No. 7800.

Circuit Court of Appeals, Sixth Circuit.

June 28, 1939.

Rehearing Denied October 10, 1939.

L. E. Gwinn, of Memphis, Tenn. (King & King, W. Chapman Dewey, and L. E. Gwinn, all of Memphis, Tenn., on the brief), for appellant.

W. P. Armstrong, of Memphis, Tenn., and C. T. Carpenter, of Marked Tree, Ark. (C. T. Carpenter, of Marked Tree, Ark., and Walter P. Armstrong and Benj. Goodman, Jr., both of Memphis, Tenn., on the brief), for appellee.

Before HICKS, SIMONS and ARANT, Circuit Judges.

HICKS, Circuit Judge.

Suit for damages for personal injuries. Verdict and judgment for $15,000.00.

Appellant complains: (1) Of the denial of a directed verdict; (2) of errors in the charge and the court's refusal to submit certain requests to the jury; (3) errors in the admission and exclusion of evidence; (4) the excessiveness of the verdict; (5) prejudicial argument; and (6) an abuse of the court's discretion in overruling certain grounds of the motion for a new trial.

Hanks, thirty-seven years old, an experienced lumber inspector, had been an employee of appellant for eight years. Appellant operated a saw mill and lumber yard. Appellee, while engaged in inspecting lumber on one of appellant's stacks, fell therefrom and was injured.

Generally speaking, the stacks were from 16 to 20 feet high, 4 feet wide and rested on a foundation of two 6 by 6 timbers, one of which was elevated to provide the stack with a slope for drainage. The stack from which appellee fell was made up of boards one inch thick, about six inches wide and fourteen to sixteen feet long, laid seven boards to a layer with intervening spaces for ventilation. Stacking sticks one inch thick were placed between each layer about two feet apart. There is evidence that as a protection to men working on these stacks the sticks should be at least four feet long and should be laid flush with the outside edges of the outside boards. On the day he was injured appellee climbed upon the stack at a place evidently arranged for that purpose and on the side opposite that from which he fell. This stack was the last one on the west side of alley 10 and a tramway ran in front and on the east side of it.

Appellee testified that the inspection work required that he and a stack walker should both be on the stack and that it was his duty to turn each board over with a lumber ruler, measure it and record the result on the tally book which he kept with him; that in inspecting the lumber he generally stood midway between the two ends of the stack but that he had to be all over the stack; that he started in at one side and cleaned the layer off as he went; that he was working with a stack walker who picked up each board after it had been inspected and would walk up to the front or east end of the pile and hand it down to the truck loader who would place it on a tram car.

He testified that they had taken off nine or ten layers; that he "had measured the inside boards, that is, the middle board of the layer, and as the stack walker picked the board up to push it off to the truck loader" he stepped back to let the stack walker by him and that the outside board tipped with him; that he fell about sixteen feet to the ground from the south edge of the stack, his left hip striking one of the foundation timbers which extended out past the edge of the stack.

He testified that he was stunned but did not become unconscious; that the outside board fell and hung on the first stick which projected about six inches and that he "beat it to the ground and it fell across my back"; that he was picked up by the truck loader and stack walker and laid on some lumber on the tram nearby. Asked why the board tipped, he answered: "* * * the stacking sticks did not extend out to the edge of the board, did not support that particular board * * * while I was laying on the tram I looked up and saw that those sticks did not extend out. * * * Then another thing, the instant I stepped on the board and it tipped with me I knew it was not properly supported." And on cross-examination:

"Q. * * * You don't say now that those sticks were not four feet long, do you? A. I did not measure them while I was lying there on the tram looking up to see what caused me to fall. I didn't measure any of those sticks. * * *

"Q. * * * You mean that you looked up and saw that some of these sticks did not come out flush with the south edge of this stack? A. Yes, sir * * * the sticks in the middle of the pile * * * did not extend out flush with the side of the stack here. * * * There were about eight stacking sticks across the line of lumber. I did not see all the sticks. I looked at the middle of the pile. I could not say how many of these sticks * * * were not out to the end of the stack but there were enough that it did not keep me from falling. I do not know as to the others but some right in the middle were not out far enough. I fell from about the middle."

Pulliam, a witness for appellee, testified that before appellee was hurt he "topped the last stack out on the west side" and that in doing so he used irregular sticks — "there was some not long enough, and some long enough; some thin and some thick."

Crabtree, a witness for appellee, who was familiar with the usual and standard methods of stacking lumber, testified in substance that the sticks should extend at least one inch beyond each side of the stack because if the sticks are not as long as the stack is wide and one should step on the outside board it would slide off with him.

We think the motion for a directed verdict was properly denied. The law in Arkansas, as in the States generally, is, that it is the duty of the employer to exercise reasonable care to furnish the employee a reasonably safe place in which to work. An apposite case is Arkadelphia Sand & Gravel Co. v. Knight, 190 Ark. 386, 79 S.W. 2d 71. It would seem useless to cite additional authorities to support such an elemental proposition.

There is evidence tending to show that the proximate cause of appellee's injury was that he fell from appellant's lumber stack when he stepped upon a board improperly supported by stacking sticks. It was appellant's duty properly to stack its lumber. We cannot regard this evidence as too improbable or conjectural to support a verdict. It was more than a mere scintilla, it was direct and substantial and must be regarded in the light most favorable to appellee.

It is urged that appellee's testimony contradicts itself and is overcome by the overwhelming weight of contradictory evidence but we have no concern with such matters in determining whether the motion for a directed...