Arkadelphia Lumber Co. v. Bethea

• Citation: 20 S.W. 808,57 Ark. 76
• Parties: ARKADELPHIA LUMBER CO. v. BETHEA
• Decision Date: 17 December 1892
• Court: Arkansas Supreme Court

20 S.W. 808

57 Ark. 76

ARKADELPHIA LUMBER CO. v. BETHEA

Supreme Court of Arkansas

December 17, 1892

Appeal from Clark Circuit Court, RUFUS D. HEARN, Judge.

Judgment reversed and cause dismissed.

J. H Crawford and U. M. & G. B. Rose for appellant.

1. A servant assumes the risk incident to his employment. 35 Ark 602; 54 id. 289, 389; 41 id. 382; 92 Pa.St. 276; 77 Mo. 508. An employer is not bound to furnish the safest machinery, nor to provide the best methods for its operation; if the machinery is such as is ordinarily used by persons in the same business, and such as can, with reasonable care, be used without danger, that is all that is required, even though other kinds might be safer. 128 Pa.St. 294; 15 Am. St. 680; 18 A. 387; 136 Pa.St. 618; 20 Am. St. 944; 53 Mich. 212; 79 Me. 397.

2. There were no latent dangers in the machine, of which the master was required to give special warning; the dangers were patent and ordinarily incident to such service. 41 Ark. 542; 46 id. 388; 39 id. 18; 151 Mass. 85; 120 Ind. 314; 28 A. & E R. Cas. 308; 39 Minn. 78; 21 P. 660; 128 Mass. 228; 77 Wis. 51. Even if the transverse bar was a defect, it was patent, and plaintiff, by continuing to work, took the risk. 19 S.W. 600; 54 Ark. 389; 114 Ind. 20; 66 Mich. 277; 77 Am. Dec. 212. Applying the law thus laid down, there is no evidence to sustain a recovery.

H. W. McMillan and G. W. Murphy for appellee.

It is the duty of the employer, on assigning his employe to work at or about dangerous machinery, to notify him of the danger, unless, in view of all the circumstances, including the age and experience of the employee, the character of the machinery and the danger, he is justified in the belief that the employee is already aware of it; to use all reasonable means in his power to render the employee's discharge of his duties safe; and to furnish him with suitable and reasonably safe instrumentalities for the performance of his work. 48 Ark. 333; 44 Ark. 293; 44 Ark. 524; 39 Ark. 18; 54 Ark. 395; 35 Ark. 602; 54 id. 289; 48 id. 460; 100 U.S. 214; 116 id. 642; 135 id. 555. Ordinary risks are such as remain after the master has used all reasonable care to prevent them. 23 P. 751; 57 Hun, 339; 1 N.E. 277; 2 West. Rep. 197; 147 Mass. 484; 65 Am. Dec. 222. Some courts limit the servant's assumption of risks to such as are ordinary, within the foregoing definition, and hold the master liable for all injuries resulting to the servant from his neglect of duty; while the majority of them, including this court, hold that the servant assumes all risks of which he has knowledge, as well as those which are ordinary. (See cases last cited). But the rule in this court, and all others holding a like view upon the matter of assumption of risks, is, that the master, whose servant has sustained injury from risks not ordinarily incident to his employment, risks which reasonable care on the part of the master would have guarded against, can escape liability only by proving that the servant had notice of the risk through which he was injured, or that he was guilty of contributory negligence. 41 Minn. 437; 37 Kan. 701; 11 A. 189; 81 Va. 576; 68 Wis. 520; 56 Iowa 520; 48 Ark. 475. Before the servant can be charged with contributory negligence, it must appear that he had received notice of the danger or risk, or had knowledge of it. 41 Minn. 444; 60 Mich. 501; 15 N.E. 904; 72 Cal. 197; 128 U.S. 91. The failure of a servant, ignorant of a danger, to select means or methods to avert the injury, or to discover, when his attention is closely occupied with his duties, discoverable defects or dangerous conditions, is not contributory negligence. 44 Hun, 336; 9 N.E. 691; 2 West. Rep. 293; 50 N.W. 404; 22 A. 1094; 28 N.E. 989. The time of appellee's service does not, as matter of law, affect him with notice. 135 U.S. 558, 571. The verdict is conclusive, unless there is no evidence to support it. 123 U.S. 710; 128 id. 443; 53 Ark. 129.

OPINION

HEMINGWAY, J.

This was an action on part of an employee to recover for personal injuries received in the course of his employment, The verdict and judgment were in his favor, and the defendant has appealed. The appeal questions only the sufficiency of the evidence to warrant any recovery.

That it is not the province of this court to determine a question as to the preponderance of evidence is the established rule; but where it is contended that all the evidence in support of a verdict is legally insufficient to warrant it, it is our duty to determine that question, having no regard to the evidence tending against it. In doing so we assume that every fact is as favorable for the successful party as the jury could have found it, and upon the case thus made determine if the verdict is warranted. We have considered this case in conformity to the rule stated, and in doing so find the following case:

The plaintiff was engaged to oil a planing machine, and, while so doing, had his fingers caught and cut off by a revolving cylinder of knives which constituted the effective principle of the machine. In order to oil it, he had to go under the machine, rest in a reclining attitude upon his side, and so elevate the bowl of the oil can as to give the neck a sufficient declension for the oil to flow. The can he used, which was furnished by the company, was twenty-two inches long, and could be used only when the bowl was enough higher than the mouth to cause the oil to flow down. The cylinder of knives extended from the top of the machine downward, and was above him when he was engaged under the machine. When raising the bowl of the can for the oil to flow out, his hand proceeded in the direction of the knives, and it was in this act that he received the injury complained of. It was necessary that the hand should be moved toward the knives, but the work could have been performed without coming in contact with them; and if he had caught the handle attached to the bowl so as to keep the bowl above his hand, it would have protected him against the knives. A spring bottom can might have been used without raising it as high as was necessary in using the one furnished; but cans of the latter kind were in general use for the purpose. The particular can was in good condition, and the machine, which was of a kind in general use, was likewise in good condition. In some respects it differed from planing machines of a different make, but no difference existed in the operation or exposure of the knives. Its full dimensions are not disclosed, but it appears that the top of the cylinder as it revolved was upon a level with the top of the machine, and that the bottom of the cylinder was twenty-eight inches above the floor. There was a transverse iron bar an inch in diameter, which furnished a means of adjusting the knives to the material to be dressed, and was six inches below the cylinder. The oil box which plaintiff was required to oil was ten inches from the bar and eighteen inches above the floor. He had to insert the can between the bar and the cylinder in order to give it the declension necessary for the oil to flow, and as the oil box was three inches lower than the bar, the bowl of the can was necessarily higher. When the machine was in operation, it threw shavings under it and caused a dust which made it impossible for one engaged in oiling to see the cylinder; but, upon an inspection from the outside, the general position of the cylinder could be seen, and, as it extended to the top of the machine, its approximate distance from the floor was patent.

The plaintiff had worked for ten months upon a planing machine of a different manufacture, with knives operated and exposed as...