Arkansas Cotton Oil Co. v. Carr

• Citation: 115 S.W. 925,89 Ark. 50
• Parties: ARKANSAS COTTON OIL COMPANY v. CARR
• Decision Date: 18 January 1909
• Court: Supreme Court of Arkansas

115 S.W. 925

89 Ark. 50

ARKANSAS COTTON OIL COMPANY v. CARR

Supreme Court of Arkansas

January 18, 1909

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge reversed.

Reversed and dismissed.

Ratcliffe Fletcher & Ratcliffe, for appellant.

The fourth instruction, based upon the theory that appellant owed appellee the duty to stack the meal so as to prevent it from falling upon him, is not justified by the testimony. The witnesses all say that the meal was stacked in the same manner that the mill had been stacking meal for thirty years that it stood in that condition all the season, and that it only became dangerous after the hands began to tear it down, and 'then the danger was apparent to all. Appellee had had previous experience working about this mill, and knew the manner in which the meal was stacked. He assumed the risk. 68 Ark. 316; 158 F. 777; Id. 964.

Lee Miles, for appellee.

At appellant's request the court instructed the jury that "if the pile of meal as it stood when the work commenced was safe and the danger arose only as the work of tearing it down progressed and was caused by the work done, the plaintiff assumed the risks thereof and can not recover," and this instruction is in substance repeated in another instruction. With such instructions before them, the jury's verdict is a finding that the fall of the meal was not due to the progress of the work of removal. In support of such finding, there is undisputed evidence that a similar stack of meal, shortly before, fell of its own accord, because it had been improperly stacked, and that the stack of meal in question in this case was piled up by the same people. Appellant was under the absolute duty to stack the meal so that with proper precaution it could be removed with safety. To this end it was its duty to tie and fasten each tier to another so as to make it safe, and failure therein was negligence. Labatt, Master & Servant, §§ 94, 97, 98; 94 Md. 39; 83 Ala. 512; Thompson on Negligence, § 3968; 162 Ill. 447; 17 Tex. Civ. App. 677; 41 U. S. App. 574.

OPINION

MCCULLOCH, J.

Appellee Carr sues appellant to recover compensation for physical injuries which he received while at work in appellant's mill moving sacks of cotton-seed meal. He alleges in his complaint that the pile of sacks of meal, which he was then engaged in moving for the purpose of loading them on railroad cars, fell upon him and broke his leg, and that the injury occurred by reason of negligence of appellant in causing the sacks of meal to be insecurely piled.

Allegations of negligence in other respects are contained in the complaint; but, as the case was submitted to the jury solely on the allegation of negligence set forth above, we need not mention any others.

The facts of the case developed at the trial were, in substance as follows: Appellant was at the time of the injury to appellee, and had been for many years, operating a cotton-seed oil mill near the city of Little Rock. The meal, after the oil is pressed out, is placed in sacks, and the sacks are piled until ready to be loaded in cars for shipment. The customary method in vogue of piling the meal was to build up first at the beginning of a pile what the witnesses call a "bulkhead," by laying down two rows of sacks about four sacks long and then crossing them with...