Athletic Mining & Smelting Co. v. Sharp

• Decision Date: 08 July 1918
• Docket Number: 116
• Citation: 205 S.W. 695,135 Ark. 330
• Parties: ATHLETIC MINING & SMELTING COMPANY v. SHARP
• Court: Arkansas Supreme Court

205 S.W. 695

135 Ark. 330

ATHLETIC MINING & SMELTING COMPANY v. SHARP

No. 116

Supreme Court of Arkansas

July 8, 1918

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; reversed.

Judgment reversed and cause remanded.

James B. McDonough, for appellant.

1. There is no substantial evidence of negligence and plaintiff assumed the risk as matter of law. A peremptory instruction should have been given for defendant. 122 Ark. 445. But plaintiff was guilty of negligence and assumed the risk. No negligence of defendant or its employees was proven. The rabble rake was in operation. The physical facts show this. 79 Ark. 608. There was no duty to warn, plaintiff knew the circumstances. Plaintiff can not recover as a matter of law. The master did not know of the danger. 35 Ark. 602. No could it have been foreseen. 708 Id. 488; 113 Id 60; 84 Id. 377; 71 Id. 445; 118 Id. 49. No structural defect is shown. Plaintiff gave no notice that he would place himself in a dangerous place. 100 Id. 156.

2. Plaintiff assumed the risk. 101 Ark. 197; 98 Id 202; 106 Id. 436; 102 Id. 631; 104 Id. 489.

3. The court erred in admitting evidence that it was customary to have a man stand at the north end of the kiln to give warning. 168 S.W. 129; 108 Ark. 483; St. L., I. M. & So Ry. v. Steed, 105 Ark.

4. It was error to give instruction No. 1. There was no evidence of negligence because the bull wheel was so near the form. It was the duty of the court to state the issues as to the three allegations of negligence and this instruction did not.

5. It was error to give No. 2. It is abstract and misleading and did not submit the proper issue as to the duty to give warning. It instructs that defendant owed plaintiff the duty of using ordinary care to maintain a reasonably safe place for him to work.

6. It was error to give No. 4. It is an attempt to define assumed risk. It is an erroneous declaration of law. As to the similarity and dissimilarity between contributory negligence and assumed risk, see 88 Ark. 243; 77 Id. 367; 99 Id. 377; 105 Id. 533; 104 Id. 489; 98 Id. 211; 159 P. 1132.

7. There was error in giving Nos. 7 and 8 as to negligence and contributory negligence. Acts 1913, p. 734; 181 S.W. 290. The Secretary of State had no authority to insert the words used after the word "injuries." It was the intention of the Legislature to take away the defense of contributory negligence only in death cases.

8. It was error to refuse No. 4 for defendant. It properly presented the question of assumed risk and there was evidence to support it.

Oglesby, Cravens & Oglesby, for appellee.

1. Whether defendant was negligent in not exercising ordinary care to furnish and keep the place where plaintiff worked in a reasonably safe condition, and whether negligent in its operation of its rabble rake was for the jury and they have settled it, unless there is no testimony to support it. The evidence shows negligence. If plaintiff's evidence is true, and the jury so found, the verdict should stand. Plaintiff did not voluntarily put himself in a place of danger, he could not do the work in any other way. No warning was given. Plaintiff was put to work by the foreman in a place of danger.

2. There is nothing upon which to base the defense of assumed risk. This question was properly submitted to the jury and their verdict settles this question. No new principle of law is found in the cases cited by appellant.

3. The motion for new trial is not set out in appellant's abstract, and this court will not consider the errors, if any, as to the admission or exclusion of testimony, etc.

4. There is no error in giving or refusing instructions. The objections are without merit. If the issues were not sufficiently stated, proper requests should have been made. The questions of negligence, contributory negligence and assumed risk were properly submitted. 75 Ark. 76; 98 Id. 211; 84 Id. 74; 77 Id. 367; 111 Id. 83. No prejudicial error appears. The verdict is amply sustained by the evidence.

James B. McDonough, for appellant in reply.

1. Sets out in full the motion for new trial and reviews the evidence and contends that plaintiff voluntarily took a place of danger and assumed the risk. 202 S.W. 824.

2. On error in instructions cites 98 Ark. 211; Thompson on Negl., § 4611, 4634; Ib. 4608; 20 Am. & Eng. Enc. Law, 109; 26 Cyc. 1177; 116 Ill. 296; 126 F. 495; 63 L. R. A. 551.

3. The doctrine of contributory negligence is not destroyed in Arkansas as to corporations except in cases of death. Acts 1913, p. 174; 122 Ark. 491. The Secretary of State was unauthorized to amend the act.

HUMPHREYS, J. SMITH, J., dissenting.

OPINION

HUMPHREYS, J.

Appellee instituted suit against appellant in the circuit court of the Fort Smith District of Sebastian County to recover damages in the sum of $ 3,000 for an injury received, due to the alleged negligence of appellant in constructing a track and bull wheel for its smelter in such close proximity to a supporting form for a pier of an ore dryer as to make it necessarily dangerous and hazardous for its employees to construct a pier; in operating the rabble rake and bull wheel; and in starting the rabble rake without giving notice or warning to appellee.

Appellant answered, denying that appellee received the injury through its negligence and pleaded an assumption of the risk and contributory negligence by appellee.

The cause was submitted to the jury upon the pleadings, evidence and instructions of the court. The jury returned a verdict in favor of appellee against appellant in the sum of $ 2,750, and a judgment was rendered in accordance therewith, from which an appeal has been duly prosecuted to this court.

At the time the injury occurred, appellant was constructing a smelting plant in South Fort Smith. The particular part of the plant where the injury occurred, consisting of bull wheels, rabble rakes, a track, cable, kiln, forms, crusher, controller platform, etc., was described by several of the witnesses, and, from their descriptions, appellant diagrammed the various parts of the machinery and the immediate surroundings. The correctness of the diagram, as descriptive of the wheels, rabble rake and immediate surroundings, is not questioned by appellee, so we incorporate it in this opinion as it is an aid to understanding the situation and operation of the machinery where the injury occurred.

The rabble rakes moved from north to south through the kiln for the purpose of stirring the hot ore. When in operation, the rakes moved slowly, taking five or six minutes to make a complete revolution. In making the revolution, and included in this time, two minutes were invariably consumed in stopping the rabble rake immediately after it passed through the kiln for cooling purposes. The molten mass of ore in the kiln heated the rakes to a red heat when they were passing through it. The rakes were made of metal and would hold the heat imparted to them when in the kiln. Form "H" was a hollow construction, eighteen by twenty inches square five feet high, braced on the north and west sides, and was made for the purpose of receiving and holding in shape the soft cement until it hardened into a supporting pier for the ore-dryer, which was to rest upon this and other [SEE ILLUSTRATION IN ORIGINAL] piers of the same character. Rods or bolts were to be imbedded in the cement piers, and for the purpose of accomplishing this, it was necessary to hang the bolts or rods in the forms before putting the soft cement in them. Appellee was a carpenter, experienced in the construction of plants of this character, and had worked prior to this time in this capacity for appellant. On the morning of the injury, he was working on the controller platform north and east of the north bull wheel when he and R. V. Denson were directed by the foreman to hang the rods or bolts in forms "H" and "I" to the northwest of the north bull wheel. R. V. Denson went to form "I" and appellee to form "H" to do this work. Form "H" was within two or three inches of the track upon which the trucks supporting the rabble rakes moved, and a person standing either on the east or west side of the form would be in danger from the right wing of the rabble rake when passing. Appellee knew the close proximity of this form to the track and the dangers incident to the performance of this labor if standing either on the east or south side of the form when the rabble rakes were in motion. He also knew that if the rabble rakes were not being operated no danger could result to him from them while standing on either the east or west side of said form to perform the labor. In order to hang the rods or bolts in the form, he stood on two stakes at the southeast corner of the form with his back to the track, looking down into the hollow form. There was evidence tending to show that he could have taken his position on the north or west side of the form to do this work, but there was evidence tending to show that he could not do so on account of braces on those two sides. A crusher located a short distance to the west of the forms was being operated at the time the injury occurred. This crusher, when in operation, made a great noise. The rabble rakes in operation made little or no noise. The operator of the rabble rakes was operating the machinery from point "K" to the southwest of the south bull wheel and could not see one who was working at form "H." Ordinarily, the operator would have stood at the controller platform to the northeast of the north bull wheel, but this platform had not been completed. Appellee knew of this fact. The evidence was conflicting as to how long appellee had been working at form "H" before the injury occurred. It ranged over a period of thirty...