Boyle-Farrell Land Co. v. Carleton

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Boyle-Farrell Land Co. v. Carleton, 266 S.W. 87, 166 Ark. 315 (Ark. 1924)
• Decision Date: 24 November 1924
• Docket Number: 3
• Parties: BOYLE-FARRELL LAND COMPANY v. CARLETON

266 S.W. 87

BOYLE-FARRELL LAND COMPANY v. CARLETON

166 Ark. 315

No. 3

Supreme Court of Arkansas

November 24, 1924

Appeal from Grant Circuit Court; Thomas E. Toler, Judge; reversed.

Judgment reversed and cause dismissed.

Coleman Robinson & House, for appellant.

The deceased was not only guilty of contributory negligence, but he also assumed a perfectly obvious risk which he himself created, by the deliberate adoption of a dangerous method in place of a safe one. 135 Ark. 488; 149 Ark. 270. Appellant was entitled to an instructed verdict.

Isaac McClellan, R. W. Wilson and J. T. Coston, for appellee.

Appellant a corporation, is liable for the injury caused by the negligence of one of its servants. C. & M. Digest, 7144; 109 Ark. 288; 144 F. 731. The negligence of Smith in knocking out the shaft in the absence of Carleton, and in disobedience of his orders, is not imputable to Carleton. 75 Ark. 30. If it was error for the court to submit to the jury the questions of assumed risk and contributory negligence, such error was cured by giving instructions 3, 4 and 5 for appellant on the same subject. 67 Ark. 539; 116 Ark. 108; 132 Ark. 450; 151 Ark. 34; 151 Ark. 278. Appellant is not in position to claim error in instruction No. 5, since he did not even plead assumed risk as a defense. 116 Ark. 108. The danger was not obvious. Carleton did not assume the risk and was not guilty of contributory negligence, unless he understood and appreciated the dangerous condition. 103 Ark. 61; 82 Ark. 11; 105 Ark. 334; 110 Ark. 456; 108 Ark. 483. The cases cited by appellant are not in point. Conceding for the sake of argument that deceased was negligent in suspending the wheels, the subsequent negligence of Smith in disobeying his orders would render appellant liable. 2 Labatt on Master and Servant, 813; 203 U.S. 473; 67 Ark. 8. Deceased did not assume the risk of Smith's negligence. Great Western Land Co. v. Barker, 164 Ark. 587.

WOOD J. HUMPHREYS, J., dissenting.

OPINION

WOOD, J.

This is an action by Mrs. Corrie Carleton, administratrix of the estate of her deceased husband, against the Boyle-Farrell Lumber Company, to recover damages for the alleged negligent killing of E. R. Carleton while in the employ of the defendant. She alleged that Carleton was employed by the defendant as a mechanic, and was engaged in removing the shafting from the sheave wheels at the west end of the carriage platform in the defendant's sawmill; that, being unable to do so with the tools and equipment at hand, he stopped work and went for other tools with which to perform the task; that, during his absence, and without his knowledge or consent, one Mose Smith, an employee of the defendant, removed the shafting from the sheave wheels, leaving them suspended in a dangerous manner, and that, just as Carleton returned to the point on the ground underneath said sheave wheels, they fell, and one of them struck Carleton and injured him so severely that he died about one hour thereafter; that the death of Carleton was due to the negligence of defendant in removing the shaft from the wheels, in the absence of the deceased, and in leaving the said wheels suspended in a dangerous manner after removing the shaft, and in failing to warn the deceased of what had been done and of the dangerous condition in which the sheave wheels had been left. The plaintiff prayed judgment on behalf of the estate in the sum of $ 5,000, and for the benefit of the next of kin in the sum of $ 10,000.

The answer denied the allegations of the complaint as to negligence, and set up the defenses of contributory negligence and assumed risk.

Mose Smith testified that he had been employed by the Boyle-Farrell Lumber Company, hereafter called appellant, for eighteen or nineteen years, off and on. He was working for appellant in December, 1922, when Carleton was killed. The mill at that time was shut down for repairs. Witness was working with Carleton, taking down a pair of sheave wheels. The saw-carriage platform is built above the ground about twelve or fourteen feet high. The carriage is pulled by a pair of twin engines and a wire rope feed which winds and unwinds on a drum wheel. There is a little groove cut in the drum and the rope winds and unwinds off of that groove, and the sheave wheels have a groove cut in them, and the wire cable works back and forth in this groove. There were four sheave wheels, two at each end. They were taking down the two larger wheels on the rear end. At first Carleton was on the upper floor, sitting on the grand stand, a place about two and a-half feet high, and witness was down underneath the floor, driving the shaft out of the wheels. Carleton was looking down at witness. Witness was standing on a ladder, the foot of the ladder resting on the ground and the top on the rim of the sheave wheels. Witness was driving the shaft out of the hub of the wheels with a sledge-hammer. Carleton said he was going to take the wheels down. Witness drove the shaft up to the hub of the wheel, when Carleton said, "Mose, wait a minute. I will go to the shop and get you something to drive it out with." After witness drove it up to the hub, he could not hit it any more with the sledge-hammer, and at this point Carleton said, "Wait, and I will go to the shop and hunt you a piece of iron to drive it out with." Carleton got down from where he was sitting and went to the shop to get the piece of iron. He wasn't gone over two, three, or four minutes. While he was gone, witness looked down on the ground and saw a piece of iron, which witness got and drove the shaft out. Just as he drove it out, it fell on the ground right down under the wheel. Carlton walked in the back end of the mill, about the time witness drove it out, and said to witness, "You have got it out, have you?" and witness replied, "Yes sir." Carleton then threw the piece of iron down that he had to drive the shaft out with. After witness drove the shaft out, he went down the ladder. As he was coming down Carleton was walking up. As witness stepped off the ladder Carleton walked right up under the wheels, and reached down to get a key that bounced out of the shaft when it fell on the ground. As Carleton reached down, to pick up the key, witness heard a noise, and said, "Look out!" and witness jumped right out through a hole that was in the wall. The wheels came right straight down. They were hung four or five feet above witness' head. As they came down one of the wheels brushed the sledge-hammer off of witness' shoulder and drove it in the ground. The other wheel fell on Carleton. It all happened in a second.

On cross-examination witness explained that the two wheels were side by side, just as near together as they could get. They had a hub like a wagon hub, and these two hubs rubbed together. There were four or five inches between the rims. The piece of iron witness used to drive the axle out with was about the same kind that Carleton went to get. Either piece would answer the same purpose. Witness was asked this question:

"Q. He said for you to wait and 'I will get you something?' A. Yes sir. Q. Did you understand he wanted you to quit work, if you had a piece there to drive it out with? A. No sir; if I had a piece to drive it out with, I didn't understand he wanted me to quit, but I didn't have anything to drive it out with but the sledgehammer at that time, and he didn't see anything. I don't suppose, if he had he would have told me to get it, and I didn't see anything or I would have told him that I saw a piece down there that would answer for that purpose; but I didn't see anything at the time he told me to wait."

The witness continued his testimony, and stated that, just as Carleton walked in the rear end of the mill, witness hit the last lick, and the shaft fell out. Witness then put his sledge- hammer on his shoulder and came down the ladder, and just as witness stepped off the ladder on the ground, Carleton reached down and picked up a key, when witness heard the noise, and jumped, as before stated. Carleton was straightening up, but hadn't got straight. Before Carleton got up to witness, he said "I see you have it out," and when he said that he threw down the piece of iron he had. He was then about twenty feet away. Witness and Carleton were standing together, nearly under the wheels. Witness explained how the wheels were hung by saying that Carleton took a piece of wood and put it through the rim of both wheels (indicating by using the arm of a chair), either wheel resting on the end of the piece of wood. They had a tackle chain which they wrapped around the block on the ends of which the wheels were suspended. When the chain was wrapped around the block two or three times there wasn't much of the rim over the end of the block. Witness was working as a helper under Carleton's direction. Carleton was the master mechanic. Witness never thought about the wheels falling, or he would not have gone on the ladder. Witness supposed Carleton could have wrapped the chain around the spokes and through the rims and lifted the wheels just as easy...