Asher v. Byrnes

• Decision Date: 04 December 1911
• Citation: 141 S.W. 1176,101 Ark. 197
• Parties: ASHER v. BYRNES
• Court: Arkansas Supreme Court

141 S.W. 1176

101 Ark. 197

ASHER v. BYRNES

Supreme Court of Arkansas

December 4, 1911

Appeal from Boone Circuit Court; George W. Reed, Judge; affirmed.

Judgment reversed and cause remanded for new trial.

Guy L Trimble, for appellant; G. J. Crump, E. G. Mitchell and W. N Ivie, of counsel.

Instructions 3 and 9 are in conflict with one another. The courts uniformly hold that the giving of conflicting instructions is reversible error. 74 Ark. 441; 77 Ark. 203; 24 Cal. 226; 23 Col. 314; 35 P. 39; 128 Ill. 173; 79 Ind. 432; 94 Mo. 475; 69 Miss. 319; 6 How. 212.

Instruction 9 and also 21 misstate the law in making it the duty of plaintiff to look for defects. 95 Ark. 295; 89 Ark. 428; 92 Ark. 109; 70 Ark. 299.

Instruction 22 errs in failing to make it a condition that appellant knew of two ways to clean the machine. 26 Cyc. 1506; 71 Ga. 405.

J Wythe Walker, T. D. Wynne and Pace & Pace, for appellee.

A conflict between instructions 3 and 9 was not raised in the lower court, either by directing its attention specifically to such supposed conflict, or in the motion for new trial, and appellant can not complain here on that ground. 66 Ark. 46; 70 Ark. 427; 75 Ark. 111. But these instructions are in fact not conflicting, the one, No. 3, being a correct declaration of law upon assumed risk, and the other, No. 9, on contributory negligence. 89 Ark. 428; 92 Ark. 109. Instruction 21 is also a correct declaration upon contributory negligence. Although the two defenses are separate, yet both may be available under the same state of facts. 77 Ark. 367.

OPINION

FRAUENTHAL, J.

This was an action instituted by J. D. Asher, the plaintiff below, to recover damages for a personal injury which he sustained while in the defendant's employment. The defendants resisted the recovery, chiefly upon the grounds (1) that the injury was due to a risk which the plaintiff had assumed, and (2) that it was caused by his own contributory negligence. Upon a trial of the case, a verdict was returned in favor of the defendants.

The defendants were contractors, engaged in constructing a courthouse in the town of Harrison, and employed plaintiff in July, 1909, as a laborer thereon. In September, 1909, he was directed by the defendants to work at a machine used for the purpose of mixing concrete. It had a hopper shaped like a half barrel, through which there passed a rod or shaft upon which steel blades were fastened. The machine was operated by the application of steam, which caused a revolution of the blades by which the cement, sand and water were properly mixed. One of the plaintiff's duties was to clean the machine by removing the concrete which clung to the blades. This was done either by pouring water down through the machine, which would remove the mixture when not too hardened, and also by using a steel chisel or hook in knocking off such mixture when it had become more hardened on the blades.

There was testimony adduced upon the part of the plaintiff tending to prove that the machine was cleaned by pouring water into it while it was put slowly in motion, and that the concrete clinging to the blades would be removed by means of a chisel inserted by the hand either in the top or bottom of the machine. The testimony on the part of the defendants tended, however, to prove that while the machine was in motion the concrete clinging to the blades was removed with an iron hook or chisel used only at the bottom of the machine, and that it was only cleaned with a chisel inserted at the top when the machine was at rest.

It appears that on the afternoon of October 18, one of the blades broke, and another blade was put in and attached to the shaft by one of the defendants, and that at the time this repair was made the plaintiff was not present. The testimony upon the part of the plaintiff tended to prove that the new blade thus put in projected from the shaft farther than the other blades, so that it extended nearer the outer portion of the machine by a distance of from one to one and one-half inches. Plaintiff continued working at the machine during the remainder of the day, but did not know or observe that the new blade extended farther than the other blades toward the outer part of the machine. On the following morning, the plaintiff endeavored to clean the machine while it was in motion with a steel chisel. He inserted the chisel with his right hand in the upper portion of the machine, and during the revolution of the blades his hand was caught and mangled so that two of his fingers were permanently injured.

There was a conflict in the testimony as to the cause of the injury. Upon the part of the plaintiff, the testimony tended to prove that, by reason of the new blade being negligently fastened to the shaft in such manner that it extended nearer to the outer portion of the machine than the other blades, his hand was thereby caught as the blade revolved. On the contrary, the testimony upon the part of the defendants tended to prove that the plaintiff was wearing a glove with a cuff attached, which was caught by the blade as plaintiff inserted his hand in the machine, and that this caused the injury. We are of the opinion that there was sufficient testimony adduced upon either side from which the jury might have been warranted in finding that the injury was due to either of these causes.

There are a number of errors assigned by counsel for the plaintiff why the judgment should be reversed, but we deem it only necessary for a proper determination of this appeal to notice certain of the instructions given which we think were so erroneous as to require a reversal.

The court at the request of defendants gave several instructions by which it charged the jury in effect that the plaintiff could not recover, even though he was injured by reason of the negligence of the defendants in furnishing a defective machine with which to work, if by the exercise of ordinary care he could have discovered the defect therein. One of these instructions was as follows:

"9. The law presumes that the laborer will use ordinary care to protect himself from receiving injury while at work; and although you may believe that defendants failed to place the blade in the machine in the proper manner, still, if you find from a preponderance of the evidence that the plaintiff by ordinary care could have discovered that the blade was not properly placed, and thereby have protected himself from injury, your verdict will be for the defendants."

The proposition presented by these instructions is whether or not the servant is required to make an inspection in order to discover defects in the tools or appliances furnished him by the master with which to work.

It is well settled that it is the duty of the master to exercise ordinary care to provide his servants with reasonably safe appliances and tools with which to work. This duty includes the one of making reasonable inspection to see that the appliances and tools thus furnished are safe. It therefore becomes the duty of the master to exercise ordinary care in discovering the defects in the appliances and tools that are furnished to the servant and in repairing them; and if he fails to perform this duty, then he is guilty of negligence, whereby, for a consequent injury therefrom, he may be liable. The servant is not ordinarily charged with the duty of inspecting the tools and appliances which are furnished him by the master in order to discover any defects or dangers therein that are latent. When a servant enters into the employment of any one, he assumes the ordinary risks and hazards which are incident to the service, and this includes all those defects and dangers which are obvious and patent. He assumes all the risks which he knows to exist and all those which are open and obvious. St. Louis, I. M. & S. Ry. Co. v. Rice, 51 Ark. 467, 11 S.W. 699; St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 295, 54 S.W. 865; Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367, 92 S.W. 244; Bryant Lumber Co. v. Stastney, 87 Ark. 321, 112 S.W. 740; St. Louis, I. M. & S. Ry. Co. v. Holmes, 88 Ark. 181, 114 S.W. 221; Ozan Lumber Co. v. Bryan, 90 Ark. 223, 119 S.W. 73.

But it is also well settled that a servant does not, when he enters the service of a master, or while he continues...