Arkansas Short Leaf Lumber Company v. Lattimore

• Decision Date: 16 April 1923
• Docket Number: 309
• Citation: 250 S.W. 28,158 Ark. 308
• Parties: ARKANSAS SHORT LEAF LUMBER COMPANY v. LATTIMORE
• Court: Arkansas Supreme Court

250 S.W. 28

158 Ark. 308

ARKANSAS SHORT LEAF LUMBER COMPANY v. LATTIMORE

No. 309

Supreme Court of Arkansas

April 16, 1923

Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge; affirmed.

STATEMENT OF FACTS.

James Lattimore sued the Arkansas Short Leaf Lumber Company to recover damages for injuries sustained by him while working for said company.

The plaintiff was a witness for himself. According to his testimony, he had been working for the defendant in Pine Bluff, Ark., for about two years before he was injured. He was second fireman, and worked under Jack Stanley, the head fireman. The regular work of the plaintiff was the firing of the Dutch ovens. On the night preceding the injury he was ordered to fire the engine for Stanley. A new fuel system had been installed, and he had not worked about this particular place since its installation. There was a fuel bin about 30x30 feet. The fuel was sawdust and shavings, which were brought into the bin from the planer mill. They fell directly in the middle of the fuel bin and spread out until the whole room was filled with a round pile, and they extended to the top of the room in a cone-shaped pile.

The new fuel system was called the blow-pipe system, and it was put in in order to make it easier for the sawdust to feed into the suction pipe. Under the blow-pipe system it was only necessary for a man to stand in the fuel room and keep the pipe up close to the fuel. The fuel would be carried through the pipe by suction from the fuel room to the engine. A fork and a pole about 14 feet long were used in raking down the sawdust. If the sawdust was not raked down from the top with the pole from time to time it would fall down like an avalanche. The building was lighted by electricity. The electric lights went out about eleven o'clock on the night before the plaintiff was injured, and were not repaired during the night. Stanley gave Lattimore a lantern to use, so that he could see how to feed the blow-pipe with the sawdust and shavings. The first lantern had a piece split out of the globe, and the plaintiff called Stanley's attention to it. Stanley then gave him his own lantern, which had a good globe. There was an opening in the fuel room, and the plaintiff hung the lantern up by it and went to work feeding the suction pipe. He worked in this way until about five o'clock the next morning. They kept up 60 pounds of steam all night for the dry-kiln, and at 5 o'clock raised steam for the day's work. About 15 minutes after 5 o'clock in the morning the pile of sawdust and shavings slipped down on the plaintiff and covered him up. They then came in contact with the lantern, and this caused the dust from the sawdust and shavings to explode, and started a fire in the sawdust which covered the plaintiff. His clothing caught on fire, and he was severely burned before his clothing could be removed and the fire put out.

The fuel came into the fuel room from the top and fell into the center of it. Practically all of the sawdust and shavings that came from the planing-mill were carried into the fuel room, and it was pretty well filled on the night the accident occurred. Stanley heard the explosion, and immediately went to the fuel room. The flames came out of the door of the fuel room, and Lattimore could not be rescued before he was severely burned. The evidence showed that he suffered great pain for some length of time after he was injured. The electric lights in the mill frequently went out, and a lantern was used to see how to feed the fuel into the suction pipe.

The jury returned a verdict for the plaintiff in the sum of $ 750, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

Judgment affirmed.

M Danaher & Palmer Danaher, for appellant.

No negligence shown by the proof of the acts of negligence charged, and appellee assumed the risk. 56 Ark. 232; 89 Ark 50; 135 Ark. 563; 147 Ark. 94; 148 Ark. 66. Court erred in giving instruction numbered 1 for appellee, and in not giving appellant's peremptory instructions requested numbered 1 and 2.

Taylor & Jones, for appellee.

Negligence was shown in allowing the sawdust to accumulate to unusual height and directing the inexperienced appellant to work there without sufficient instructions, and with only a lantern instead of electric lights-- in not furnishing him a safe place to work. 116 Ark. 277; 90 Ark. 223; 117 Ark. 198; 123 Ark. 119; 82 Ark. 555; 105 Ark. 247; 106 Ark. 25; 115 Ark. 380. Risk not assumed. 110 Ark. 456; 77 Ark. 458; 90 Ark. 407; 116 Ark. 108; 113 Ark. 359. Negligence shown. 96 Md. 652, 61 L. R. A. 574; 86 Ark. 244; 129 S.W. 78; 124 Ark 118. Evidence sufficient to support the verdict. 70 Ark. 136; 65 Ark. 116; 63 Ark. 536; 97 Ark. 86. No error in giving instruction No. 1. 102 Ark. 562; 67 Ark. 209; 90 Ark. 223; 113 Ark. 359. No error in refusing to give peremptory instructions. 91 Ark. 337; 123 Ark. 119.

M Danaher & Palmer Danaher, in reply.

Appellee was not inexperienced, and no allegation of failure to warn. 73 Ark. 49; 82 Ark. 536. No negligence established in connection with lights being out.

OPINION

HART, J., (after stating the facts).

Counsel for the defendant insist that the court erred in not instructing a verdict in its favor. They claim that the system of piling the sawdust and shavings in the fuel room and in feeding the same into the suction pipe was the latest improved method of doing it, and also that whatever danger attended the work was obvious to any one of average intelligence, with the plaintiff's experience in working in the mill. In making this contention counsel for the defendant rely upon the case of Arkansas Cotton Oil Co. v. Carr, 89 Ark. 50, 115 S.W. 925, and other cases of like character. In that case a servant of the company was injured by the falling of sacks of meal piled in the customary and best practical method, and the court held that the company was not guilty of negligence. The court further held that a servant engaged in moving sacks of cottonseed meal will be held to have assumed the risk of the sacks falling on him, if the sacks were piled in the usual way, and the danger of them falling down was obvious and was one of the ordinary risks of the work about which he was employed.

If there was nothing in the present case except that the plaintiff was injured by the pile of sawdust and shavings falling down on him while he was feeding them into the suction pipe, the case just cited would apply. The negligence relied upon for a recovery in the present case is the failure of the defendant to warn the plaintiff of the danger of working in the fuel room with the lantern. It is one thing to say, as a matter of law, that a man of the plaintiff's experience would know that the pile of sawdust and shavings would fall down on him if not properly handled, and another thing to say, as a matter of law, that the danger of doing the same work with a lighted lantern instead of electric lights was also obvious to him. When the room was lighted by electricity the only danger that could...