Arkansas Land & Lumber Co. v. Cooper
| Decision Date | 27 November 1922 |
| Docket Number | 8 |
| Citation | 245 S.W. 192,156 Ark. 58 |
| Parties | ARKANSAS LAND & LUMBER COMPANY v. COOPER |
| Court | Arkansas Supreme Court |
Appeal from Little River Circuit Court; James S. Steel, Judge reversed.
STATEMENT OF FACTS.
E. T Cooper sued the Arkansas Land & Lumber Company to recover damages for personal injuries sustained by him on account of the negligence of the defendant while he was in its employment.
The defendant denied negligence on its part, and pleaded assumption of risk on the part of the plaintiff.
E. T Cooper was a witness for himself. He was twenty-three years old at the time he was injured on the 13th day of September 1921. He was receiving $ 2.75 per day, and had been in the employment of the company for four or five months at the time he was injured. He had been working in the electric department of the company's mill for about a month before he was injured. Before that he had worked in the garage department. He was injured while using a tractor at the defendant's mill. It had two tractors, Nos. 1 and 2. Both were run by mercury batteries, and were used in pulling lumber buggies around the mill yards. The tractors were constructed alike, but No. 1 was faster than No. 2. Each tractor was about six or seven feet long and had three wheels, two in the rear and a smaller one in front. The front wheel was used to guide the machine, and the rear ones did the pulling. The front wheel was attached to the machine by a steel fork constructed on the same principle as a bicycle. The front wheel was supported on a ball-bearing which was arranged so that it could be tightened, adjusted, replaced, or disassembled by a set- screw which held the nut that supported the fork in place. The fork was attached to a solid piece, which was crooked and extended to the left of the operator, as he sat on the front part of the machine, so that he could guide it. On his right was a lever which he used to turn on and off the current. When the set-screw, which was attached to the collar which held the fork to the handle-bar with which the machine was guided, worked loose, the nut would screw down and tighten the bearing and make it hard to steer the machine, and, if it was screwed tight enough, it would lock the machine. If you got to where you could not operate the steering apparatus, the machine would continue to run in the direction in which the front wheel was set. If it was set straight, the machine would run straight. If it was set in a circle, the machine would turn around. The machine had an automatic brake on it, which could be applied by the driver raising his weight off of his seat.
The plaintiff was familiar with the use of the tractor at the time he was injured, and had to some extent been repairing it under the directions of his foreman. The steering wheel had gotten out of fix, and the plaintiff had reported that fact to J. A. Smithson, his foreman, who promised to have it repaired. The plaintiff did not work for a few days after the foreman promised to repair the machine, on account of the illness of his wife. He returned to work on the morning that he received his injuries. His foreman told him to take tractor No. 2 into the mill yard for use, and directed him and the other helper to repair tractor No. 1. The tractors were kept at night in a little house to themselves for the purpose of having their batteries charged with electricity. This house was connected with the mill yard by a tramway eight or ten feet high and six or seven feet wide. It had 2 x 4 planks nailed down along its edges for the purpose of preventing the tractors from running off of the tramway. The plaintiff got on tractor No. 2 and began to back it along the tramway into the mill. The steering wheel turned around and became locked. The plaintiff endeavored to turn it straight again so that the tractor would run along the tramway, but could not do it on account of its being locked. He applied the foot brake as soon as possible, but the tractor jerked violently and threw him to the left of the tramway, and the tractor itself ran off on the right side thereof. The plaintiff was thrown so violently from the tractor that he was severely injured.
J. A. Smithson, the brother-in-law of the plaintiff, and the foreman of the defendant under whom the plaintiff worked, was the principal witness in behalf of the defendant. He described the tractor in much the same way as it appears from the statement of the evidence in behalf of the plaintiff. Both of the tractors in question had been in use for about three years, and were almost constantly in need of repair. It was the duty of the plaintiff and the other helper of the foreman to inspect and repair the tractors. The plaintiff, after having been absent from work for several days on account of the illness of his wife, reported for work at the office of his foreman on the morning that he was injured. The foreman directed the plaintiff and his other helper to go to the house where the machines were kept at night and look over the tractors, tighten them up and see that they were in good running order. Smithson was asked the specific question if he had told the plaintiff to take the tractor anywhere the morning he was injured, and his answer was: Again, Smithson stated that he told plaintiff and his other helper to go over there, look the tractor over and make repairs on them. The plaintiff was injured while engaged in that service.
The jury returned a verdict in favor of the plaintiff in the sum of $ 10,000, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.
Judgment reversed and cause remanded.
King, Mahaffey & Wheeler, for appellant.
The mere fact that the tractor may have become locked, thereby throwing appellee off, did not prove negligence on the part of appellant. The doctrine of res ipsa loquitur does not apply in cases of this nature. 81 Ark. 372; 74 Ark. 19; 79 Ark. 76. Since it was a part of the duty of appellee to keep the tractors in repair, the master did not owe him the duty to see that they were in reasonably safe condition for his use. 3 Labatt, Master & Servant, sec. 1176; 124 S.W. 1048; 44 Ark. 524; 58 Ark. 217; 114 S.W. 697; 187 S.W. 1085; 161 S.W. 421; 166 Ala. 482; 151 N.C. 356; 81 Ga. 14; 31 Cal. 377; 26 Cyc. p. 1252. It was error to refuse defendant's instruction No. 2 in the form requested, since it covered a defense which was supported by the evidence. 87 Ark. 243; 72 Ark. 572; 105 Ark. 205; 122 Ark. 125; 198 S.W. 690. Instruction No. 3 1/2 was error. Appellee being a repairman, appellant was under no obligation to furnish him safe applianes upon which to work. The conditions of the working place were obvious to appellee, and if there was danger he assumed it in taking employment. 57 Ark. 6; 83 Md. 257; 144 Pa. 348.
D. D. Glover and Percy Steel, for appellee.
It is a duty the master owes to the servant to furnish him a safe place in which to work. 71 Ark. 55; 91 Ark. 393. It was the duty of the master to warn of the defective condition of the tractor. 81 Ark. 591; 92 Ark. 351; 97 Ark. 553; 87 Ark. 321. A servant does not assume the risk of dangers that arise from the master's negligence, unless he is aware of them. 136 Ark. 607; 102 Ark. 640; 79 Ark. 56; 95 Ark. 294; 101 Ark. 201.
HART, J. (after stating the facts).
It is first earnestly insisted by the counsel for the defendant that the evidence is not legally sufficient to support the verdict. The tractor is guided by the front wheel, which is connected with the front part of the machine by a fork, something on the principle of one on a bicycle. The fork comes up through the foot-brake on the machine, and other parts attached to it make a handle-bar with which to guide the machine. The fork is supported on a ball bearing, and the ball bearing is adjusted and held in place with a nut and set-screw through an iron collar. The tractor, in hauling carriages of lumber on the floor of the mill, has a tendency to loosen the set-screw, and this has the effect to tighten the nut on the bearing and make the machine hard to steer and also to lock the steering wheel.
The plaintiff knew that the machine was defective in this respect, and reported that fact to his foreman. Then his wife became ill, and he was absent from his work for several days. When he returned to his work, his foreman told him that the tractor had been repaired, and directed him to drive it from the house, where it was kept at night, to the floor of the mill for use that day. While backing the tractor along the tramway into the mill, the front wheel turned and became locked. The plaintiff tried to turn it back straight so that the machine would not jump off the tramway. His efforts caused the machine to jump violently and throw him off of it to the left of the tramway, and at the same time the machine ran off to the right of the tramway. The plaintiff had a right to rely upon the statement of his foreman that the machine had been repaired, and it cannot be said, under the circumstances detailed by him, that the defect in the machine was so patent to him when he got on it that he must have known that it was still out of repair. According to...
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