Arkadelphia Lumber Co. v. Henderson

• Decision Date: 18 November 1907
• Citation: 105 S.W. 882,84 Ark. 382
• Parties: ARKADELPHIA LUMBER COMPANY v. HENDERSON
• Court: Arkansas Supreme Court

105 S.W. 882

84 Ark. 382

ARKADELPHIA LUMBER COMPANY v. HENDERSON

Supreme Court of Arkansas

November 18, 1907

Appeal from Clark Circuit Court; Jacob M. Carter, Judge; affirmed.

STATEMENT BY THE COURT.

M. M Henderson, as next friend of John Henderson, a minor, sued the Arkadelphia Lumber Company for damages on account of personal injuries sustained by him while in the employ of said Lumber Company. He alleged that he was working in the mill of the Lumber Company about its stave bolting machine, a "dangerous and deceptive machine," which was so adjusted that only a small portion of the saws therein were visible to the operator; that the chains which were carried to said saws were defective in that they were continually coming apart or unlinked, thereby necessitating the operator mending the same by reaching his hand under said machine where said saws were concealed to link the chain together. That John Henderson was ordered to work about said machine and while feeding it one of the chains became unlinked, and in the necessary discharge of his duty he had to reach under the machine to fix the chain in order to keep it in operation; that in so doing his hand came in contact with the saws, causing the loss of his thumb and a portion of his left hand. It was further alleged that said John Henderson was inexperienced in work about machinery, and that the defendant was negligent in ordering him to work about dangerous machinery without notifying and warning him of the latent dangers of said machine, and negligent in operating said machine with defective chains.

The Lumber Company denied all the material acts of negligence alleged in the complaint, and alleged that the said John Henderson was employed to tail the bolting machine; that his duty was to pass the pieces which make staves to the stave machine as they came from the bolter, which position was not dangerous, and did not bring him in contact with the saws of any dangerous machine. It denied that he was ordered to work in the position he occupied when he was injured, and denied that it was any part of his assigned duty to feed said machine with bolts. It alleged that, while he was engaged in tailing the bolting machine, one Chivis Hand, who was employed to feed the bolter, was required to be absent, and on leaving requested Henderson to take his place until his return; that during the absence of Hand the chain became unlinked without fault or negligence of the defendant, and that in an improper attempt to repair it Henderson was injured. That he was not employed to do this work, and that it was not known to the company that he was at work in that place until after the injury.

There was testimony on behalf of the plaintiff tending to prove that he was seventeen years old at the time he was injured and that he was first employed, for about a week, in the yard picking up sticks, and was then employed to tail the bolter in which capacity he had been working for about a week when he was injured. The bolter was a machine arranged upon a table about three or four feet high, containing three circular saws; and two link chains carried the bolts through. The saws revolved on one shaft. Part of the table was boxed up, and about one-third of the saws were visible above the table, and it was dark under the table. The chain usually came unlinked two or three times a day, and it was the duty and habit of the feeder to link it together in order to continue the machine in operation. In doing this his hand was brought in close proximity to the saws revolving under the table. There was a usage in the operation of this machine that when the feeder was absent therefrom either the foreman in charge of the mill or the tailer took his place and fed the machine. The foreman, Duvall, at times served as feeder and he was present at other times when the taller was called upon to act in that capacity, and was present at least once when John Henderson was so acting. During the week that he had been at work as tailer, he had been called upon two or three times to act in the position of feeder. He was not warned nor advised nor instructed as to the operation of said machine nor the danger of connecting the links of the chain; and his testimony indicates that he did not understand or appreciate the danger thereof. While engaged in feeding the machine, a link came unfastened, and in the attempt to fasten it Henderson lost his thumb and a part of a finger.

The Lumber Company adduced evidence tending to prove that the danger in linking said chain together was obvious and patent to any one of ordinary intelligence and understanding, and that an injury resulting from linking it together would be due to negligence on the part of the person attempting to do so; that Henderson was employed as tailer, and it was not a part of his duty to serve as feeder; that as tailer he was not brought into contact with dangerous machinery, and that he was warned of such dangers as were attendant upon the service for which he was employed; and that it was not known to the foreman, or any one else in charge, that he was serving as feeder of the bolting machine, until after he was injured; and that it was a voluntary assumption of service for him to serve at the bolter, and due to the request of his fellow servant, Chivis Hand, calling him to that position.

The court gave instructions as requested by each side, fully and fairly presenting the different phases of all the issues. It is only necessary to set out the sixth and seventh instructions, which are as follows:

"6. You are instructed that if you believe from the evidence that it had been the usage and custom of the defendant to allow or permit the persons feeding its machine to call a co-laborer who tails the machine to take his place and discharge his duties as feeder during his temporary absence, and that it had been the habit or usage of the one feeding the machine to relink or repair the chain of said machine while in operation, and that defendant knew of such customs, usages or habits, and acquiesced in them, then the acts, custom or usage of the feeder of such machine in these respects would be deemed in law the usage or custom of the master, and the doctrine of fellow servant will not apply in this case.

"7. You are instructed that if you find from the evidence that the plaintiff, John Henderson, in taking the place of Chivis Hand, while absent temporarily, in feeding the bolting machine, was following the general habit, mode or course of procedure in vogue at the time at the defendant's stave mill, and that in doing so the said John Henderson honestly believed that he was performing his duty, or within the scope of his duty and employment; and furthermore that the said bolting machine was a dangerous machine, and that John Henderson had not been instructed as to its danger or how to perform said work with reference thereto, and by reason of his youth and inexperience he was injured, then it will be your duty to find for the plaintiff."

The court refused to give the following instructions on behalf of the Lumber Company: "The jury are instructed that the plaintiff in this action has not alleged in his complaint a special custom or usage current in the defendant's stave bolting mill, to the effect that when the feeder of said machine temporarily absents himself from said machine the boy employed to tail said machine should take his place. The court tells the jury that, in the absence of such allegation, proof of such custom or usage cannot be considered by the jury. Therefore all such proof is now withdrawn from the consideration of the jury."

The jury found a verdict for $ 1,000 for the plaintiff, and from the judgment entered thereon the Lumber Company has appealed. All exceptions were properly preserved and brought forward in the motion for new trial.

Judgment affirmed.

John H. Crawford, for appellant.

1. Under the allegations of the complaint and the proof, the court should have given a peremptory instruction for the appellant. There is no evidence that the chains were defective or that the machine was any more dangerous and deceptive than any other machine of the same kind, and there was no latent danger. In this case the servant knew the danger, which was patent, and was of sufficient age and intelligence to appreciate it. 57 Ark. 76. The negligence, if any, was that of a fellow servant. 58 Ark. 318; 46 Ark. 555. See also 39 Ark. 19.

2. The sixth and seventh instructions were erroneous. No usage and...