Arkadelphia Lumber Co. v. Whitted

• Decision Date: 17 December 1906
• Citation: 98 S.W. 697,81 Ark. 247
• Parties: ARKADELPHIA LUMBER COMPANY v. WHITTED
• Court: Arkansas Supreme Court

98 S.W. 697

81 Ark. 247

ARKADELPHIA LUMBER COMPANY v. WHITTED

Supreme Court of Arkansas

December 17, 1906

Appeal from Clark Circuit Court; Joel D. Conway, Judge; affirmed.

Judgment affirmed.

T. B Morton and John H. Crawford, for appellant.

1. The court erred in giving the third instruction asked for by the plaintiff, and in refusing to give the fourteenth instruction asked for by the defendant. Rules are generally only necessary to be promulgated by railroads and like corporations. 58 Ark. 332. They are required only to avoid accidents, and when from the dangerous nature of the business accidents would most likely occur without them. 64 Am. St Rep. 785; 20 Am. & Eng. Enc. of L. (2 Ed.), 101. They need not necessarily be written or printed and posted up; if verbal, and sufficient to protect the employees working about the premises when acted upon, nothing more is reqired. It is for the court to say whether such regulations are reasonable. 58 Ark. 334; 52 Ark. 406. See also 31 N.E. 234; 43 P. 230.

2. The first, second, fourth and sixth instructions given for plaintiff were erroneous, in this: that they fail to tell the jury that before the defendant can be held liable it must appear that the negligence complained of contributed to and caused the injury. 76 Ark. 436; 75 Ark. 263. The fourth is also abstract.

3. The fifth instruction is erroneous in submitting to the jury the question whether the defendant directed the plaintiff to remove the sawdust, etc., when the machine was stopped. There was no evidence that defendant or its foreman ever gave such direction. Moreover, it permits a verdict against the defendant for injuries resulting from the negligent act of a fellow servant. 39 Ark. 19.

4. The eighth instruction given for plaintiff was erroneous because there was no evidence as to how much plaintiff could earn before the injury nor how much he could earn afterwards. 15 Am. Cent. Dig., cols. 2321-2; 69 Ark. 380.

Hardage & Wilson and Scott & Head, for appellee.

1. "If the danger of employment is patent, and the servant by reason of his youth and inexperience, does not know or appreciate the danger incident to the service he is employed to do, it would be the duty of the master to warn him of it, and instruct him how to avoid it, so far as it can be, before exposing him to it." 73 Ark. 49. The fourth instruction was correct.

2. It is the duty of the master, in the operation of dangerous machinery, to adopt and enforce such rules as will afford reasonable protection to the employees working about the same. In this case, defendant's rule, if it had any, was insufficient; and if it was sufficient, it was not observed. 54 Ark. 289.

3. It was the master's duty to see that the machine was clear, and that no one was in danger before starting; and when it delegated this duty to Blackburn, as appears by the testimony, it placed him in the relation of vice-principal to the plaintiff, and not of fellow servant, and is bound by his acts and negligence. 44 Ark. 530. Even if Blackburn were a fellow servant, yet, if defendant had no rule requiring notice to persons working about the machine when it was about to start, it was guilty of negligence, and liable for the injury. 2 Am. Neg. Rep. 37. If injury results from the negligence both of the master and of a fellow servant, then the master is liable. 66 Wis. 268.

4. The questions as to whether plaintiff, by reason of his youth and inexperience, knew or appreciated the danger incident to his service, and whether he was warned of such danger or instructed how to perform the service required of him, were questions for the jury. 11 Am. Neg. Rep. 599; 115 Mich. 484; 9 Am. Neg. Rep., 482; 1 Id. 6; 2 Id. 37.

OPINION

BATTLE, J.

Emmet Whitted, by his next friend, brought this action against the Arkadelphia Lumber Company to recover damages occasioned by injuries sustained by him while in the service of the defendant. The lumber company owned and operated a machine for manufacturing staves. In the machine and a part of it were saws so constructed that, when in operation, they vibrate up and down and to the right and left at a great rate of speed, and can be stopped and put in motion independently of other parts of the machine. The plaintiff, a lad about eleven years of age, was employed by the defendant to assist in the operation of these saws by "picking sticks," and removing out of the way of the saws sawdust and shavings. Before he was sent to work, the foreman showed him the saws, and told him to be careful and not get hurt, and to remove the sawdust and shavings when the machinery was not in motion. No instructions were given him as how he should do the work; and he. was not instructed as to the dangers to which he was exposed by the operation of the machinery, and how to guard against the same. On the 17th day of May, 1905, while he was engaged in clearing dust and shavings away from the saws, his left hand was caught, and his fingers, except the thumb, were severed by the saws. Some witnesses say that when he commenced removing the sawdust and shavings the saws were not in motion, but after he had been so engaged for a short time the machinery was suddenly started, without signal, notice or warning to the boy, and the injury was inflicted; and others say that it was in motion all the time he was so employed in cleaning. There was no rule or regulation adopted by the defendant for the protection of its employees against such accidents, unless it was an instruction to the operator to look and see that no one was in danger before putting the machine in motion.

Upon this state of facts the court instructed the jury that tried the issue in the case, over the objections of the defendant, in part as follows:

"No 1. You are instructed that if you find from the evidence that defendant, by its foreman, ordered the plaintiff, Emmet Whitted, to perform work at the defendant's stave machine, and that the said stave machine was a dangerous and deceptive machine, and that the plaintiff, by reason of his youth and inexperience, did not know or appreciate the danger incident to the service about said machine, and that defendant's foreman did not warn him of such danger or explain to him how to perform the service required of him, and that by reason of the failure to give him proper instructions how to perform the service required of him, or to warn him of the danger incident to the performance of such service about said stave machine, together with the plaintiff's want or lack of knowledge or appreciation of the danger incident to such service, on account of his youth and experience, he was injured, then it will be your duty to find for the plaintiff.

"No 2. You are instructed that if you find from the...