Burdette Cooperage Co. v. Bunting

• Decision Date: 04 May 1914
• Docket Number: (No. 300.)
• Citation: Burdette Cooperage Co. v. Bunting, 167 S.W. 77 (Ark. 1914)
• Parties: BURDETTE COOPERAGE CO. v. BUNTING.
• Court: Arkansas Supreme Court

167 S.W. 77

BURDETTE COOPERAGE CO. v. BUNTING.

(No. 300.)

Supreme Court of Arkansas.

May 4, 1914.

Appeal from Circuit Court, Mississippi County; W. J. Driver, Judge.

Action by Melissa Bunting, administratrix of Fred Bunting, deceased, against the Burdette Cooperage Company, for negligently causing the injury and death of deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

The Burdette Cooperage Company, for the purpose of lifting, loading, and otherwise handling logs at its plant, used a derrick; two of the principal parts consisting of a mast pole and a boom pole. The mast pole was 42 feet long, and was intended to stand in a perpendicular position, and to be held in such position by guy wires, one end of which was fastened to trees, stumps, or what is known as "dead men," and the other end was attached to a wrought iron or steel cap or plate on the top end of the mast pole. The holes through which the guy wires were to pass near the rim of the cap were cut straight or square through, leaving sharp edges. The edges were not rounded out, nor were they lined with rings or shields to prevent the wearing away of the galvanized iron guy wire. The guy wire was softer than the plate or cap through which it passed. The naked wire should not have been allowed to touch the edges of the holes of the cap through which it passed, as the sharp edges of the iron would wear and cut away the strands of the guy wire.

The derrick, in its use, had become loose, so that the mast pole would swing back and forth some 8 or 10 inches, and as it swung it would jerk on the cable or guy wires on the other side. The boom pole was fastened to the mast pole near the lower end and stood at an angle of about 45 degrees and swung around as occasion required. The mast pole and the boom pole were equipped with pulleys, cables, guy wires, and implements of machinery necessary to constitute a working derrick.

Fred Bunting, on the 22d day of July, 1912, was in the employ of the Burdette Cooperage Company as a common laborer, and on the above day he was temporarily engaged as a hooker. There were two hookers, whose duty it was to adjust the hooks to the ends of the logs. When these hooks were fastened into the ends of the logs, a signal would be given, the engine would start, and the drum would wind up the cable to which the logs were attached, and in this way the logs would be slowly lifted. While lifting a log in this way, one of the guy wires broke, causing the derrick to fall, which resulted in the injury to Bunting, from which he died the following day. He was conscious and suffered great pain from the time of the injury until his death.

The derrick had been put up about a year before, and had fallen down by reason of a heavy pull made on it. It had been reconstructed structed about two weeks before the injury by the company's millwright.

The above are substantially the facts giving the evidence its strongest probative force in favor of appellee.

The appellee, as administratrix, brought this suit to recover damages for the injury to and death of Fred Bunting, alleging that, by reason of the careless and improper manner in which the guy wire was fastened to the cap, it worked loosely therein, the hole being much larger than the guy wire, and as a result it wore and ground away said wire; that the wires were old and rust-eaten, rotten, and so worn and in such a weakened condition that, while the log was being lifted, one of them gave way, causing the derrick to fall, whereby Bunting was struck and injured, and afterwards died from the result of such injuries.

The appellant denied the allegations of negligence set up in the complaint and pleaded affirmatively that the death of Bunting was the result of an accident, and also set up contributory negligence and assumed risk. The cause was submitted to the jury. The appellant asked the court to direct a verdict in his favor after the evidence was adduced, which the court refused, and to which ruling appellant duly excepted. No objection is urged to any other rulings of the court in the giving or refusing of instructions. A verdict was returned in favor of the appellee in the sum of $1,000 damages for pain and suffering and in the sum of $4,000 for the pecuniary loss to appellee by reason of the death of her husband. Judgment was entered for the sum of $5,000, and this appeal has been duly prosecuted. Other facts stated in the opinion.

W. J. Lamb, of Osceola, and H. T. Harrison and T. D. Wynne, both of Fordyce, for appellant. Gravette & Alexander, of Blytheville, and J. T. Coston, of Osceola, for appellee.

WOOD, J. (after stating the facts as above).

1. The court did not err in refusing to direct the jury to return a verdict in favor of the appellant. It was a question for the jury, under the evidence, as to whether or not the appellant had exercised ordinary care to provide its servant Bunting with reasonably safe appliances with which to perform the work in which he was engaged at the time of his injury. The testimony of appellant's millwright, who constructed the derrick, was to the effect that he used the usual material in the construction of the same and constructed the same in the usual manner that such machinery was constructed. He stated that the holes through the cap to which the guy lines were fastened were round holes, drilled out for the purpose of passing the guy lines through; that he ran the guy lines through the holes, bent them over, parted the ends, and brought them back on the main line and made them fast; that they were all fastened in that way. This way of fastening them he considered safe. Sometimes they are fastened with clamps, sometimes with half-hitches. These different ways are all safe. He had put up several this way. The wires could be fastened in the manner indicated "so fast and close that they would break before they would let go."

But there was testimony on behalf of the appellee tending to show that the falling of the derrick was caused by the breaking of one of the large cables; that soon after the accident, probably that evening, certainly the next morning anyway, before the derrick was moved off the skidway, the cable was examined to ascertain the condition of the ends of the wires where the same were broken. The cable was broken where the edges of the wrought iron holes in the cap cut into it. There had been some jerking back and forth. Some of the ends of the strands were bright, and some were not. Some of them had the appearance of having been broken before the accident. Some of the ends had turned dark. Half, anyway, of the ends of the strands were dark, indicating an old break.

There was testimony tending to show that all...