Border Queen Kitchen Cabinet Company v. Gray
| Decision Date | 03 December 1934 |
| Docket Number | 4-3621 |
| Citation | 76 S.W.2d 305,189 Ark. 1137 |
| Parties | BORDER QUEEN KITCHEN CABINET COMPANY v. GRAY |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Woods, Judge; affirmed.
Judgment affirmed.
Daily & Woods, C. W. Knott and J. S. Dailey, for appellant.
Roy Gean, for appellee.
Claude Gray, the appellee, brought this action to recover damages for an injury which he sustained, alleged to have been occasioned by the negligence of a fellow-servant. The answer specifically denied the allegation of negligence, and, as affirmative defenses, pleaded assumption of risk and contributory negligence. At the conclusion of the testimony the appellant, defendant in the court below, moved for a directed verdict, which motion was overruled. The case was submitted to the jury on instructions declaring the law as to negligence, assumption of risk and contributory negligence which are conceded to be correct.
The sole ground urged for reversal is based on the contention that there was no substantial testimony tending to establish the negligence of the fellow-servant, but, on the contrary that the injury to appellee was the result of one of the ordinary risks of employment which he had assumed.
The argument is made that the testimony of appellee himself fails to show any negligence on the part of his fellow workman and affirmatively discloses the fact that the injury complained of happened because of the inherent dangers to be expected and those ordinarily incident to the character of work being done. To sustain this argument, certain parts of the appellee's testimony are quoted which do tend to support the contention. During his examination it is apparent that he became confused, causing him to make some contradictory statements, but these serve only to affect his credibility, and the jury resolved that question in his favor.
There were only two witnesses to the incident out of which the injury grew, Gray, the appellee, and Bob Dean, his fellow-servant. Their testimony is in conflict as to the vital question in the case, that of Dean tending to show that, if any accident happened to the appellee, it was one which could not have been foreseen or avoided, and that Dean, himself, was at all times acting with due prudence and caution.
It appears that appellee and Dean were working in the finishing department of appellant's manufactory, each operating a machine used in spraying varnish on the finished products. They worked in a large room containing the equipment used in that particular department in which steel drums containing liquid varnish were stored to be used in that room as needed. These drums were about three or four feet long, made so a spigot could be inserted in one end through which the liquid could be drawn as required. When in use, they were placed on racks about eighteen inches above the floor, high enough to set a five gallon can under the spigot. The drum used by Dean became empty. He asked the appellee to help him move another...
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Dierks Lumber & Coal Company v. Noles
... ... We ... think the case of Border Queen Kitchen Cabinet Co ... v. Gray, 189 Ark. 1137, 76 ... ...
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Duncan v. Montgomery Ward & Co.
...the court was in error, relies upon Mississippi River Fuel Corporation v. Senn, 184 Ark. 554, 43 S.W.2d 255; Border Queen Kitchen Cabinet Co. v. Gray, 189 Ark. 1137, 76 S.W.2d 305; Phillips Petroleum Co. v. Jenkins, 190 Ark. 964, 82 S.W.2d 264; and similar cases. The appellee does not disti......