Burdette Cooperage Company v. Bunting

• Decision Date: 04 May 1914
• Docket Number: 300
• Citation: Burdette Cooperage Company v. Bunting, 167 S.W. 77, 113 Ark. 45 (Ark. 1914)
• Parties: BURDETTE COOPERAGE COMPANY v. BUNTING
• Court: Arkansas Supreme Court

167 S.W. 77

113 Ark. 45

BURDETTE COOPERAGE COMPANY v. BUNTING

No. 300

Supreme Court of Arkansas

May 4, 1914

Appeal from Mississippi Circuit Court, Osceola District; W. J Driver, Judge; affirmed.

STATEMENT BY THE COURT.

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 forty-two 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 eight or ten 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 forty-five 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 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 afterward 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 its 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.

Judgment affirmed.

W. J Lamb, H. T. Harrison and T. D. Wynne, for appellant.

1. The accident and injury were inevitable. Webb's Pollock on Torts, p. 161.

2. The court erred in refusing to direct a verdict for appellant. 86 Ark. 289; 105 U.S. 249; 69 Ark. 402; 55 Ark. 163; 91 Ark 260; 16 Ark. 236; 15 Ark. 118; 87 Ark. 576; 76 Ark. 436.

3. Appellee assumed the risks of his employment. 90 Ark. 407; 82 Ark. 534.

4. The court erred in admitting certain testimony. Jones on Evidence, p. 375; 99 Ark. 489; 96 Ark. 171; 100 Ark. 107.

Gravette & Alexander and J. T. Coston, for appellee.

1. Instructions Nos. 1 and 2 were correct. 2 Labatt on Master & Servant, 813; 54 Ark. 299; 67 Ark. 8; 113 S.W. 359; 203 U.S. 473; 77 N.Y. 82; 83 Am. Rep. 574; 119 S.W. 675; 87 S.W. 397; 99 F. 51; 106 U.S. 702; 4 Thompson on Negligence, § 4858; 1 Labatt on Master & Servant, § 31; 3 N.E. 577, 578; 21 S.E. 347; 42 P. 344; 67 F. 885; 25 N.E. 915. The worn and weakened condition of the guy wire contributed to the injury. Where several causes concur to produce certain results, any of them may be termed "proximate." 2 Labatt, 813; 54 Ark. 299; 67 Id. 8; 113 S.W. 359; 87 S.W. 397, and cases supra.

2. Evidence of the reputation of the derrick among employees was competent. 3 Labatt, 1030; 43 Ill. 338; 71 Id. 294.

3. Improper testimony if not prejudicial is not reversible error. 32 Ark. 346; 20 Id. 234; 52 Conn. 285; 163 S.W. 172; 4 S.W. 701; 70 F. 364; 8 Ala. 820.

4. Deceased did not assume the risk. 141 S.W. 1178.

5. The evidence makes a case of gross negligence.

OPINION

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

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 run 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 any way, 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 of the ends of the strands were dark, indicating an old break.

There was testimony tending to show that all derricks will fall when their guy wires are worn and broken. A piece of the guy wire, showing the broken end, was exhibited and identified as the end of the guy wire where the same had broken at the time of the injury complained of.

There was testimony on behalf of the appellee tending to show that the mast pole was loose, playing back and forth a distance of eight or ten inches, and allowing the same to jerk, and that the holes through the plate on top of the mast pole was left without covering, exposing the strands of the guy wires to the edges of the wrought iron or steel plate, thereby causing the guy wires to be cut in two and worn off.

Notwithstanding the testimony of appellant's millwright that he constructed the derrick in the usual manner, and that he considered it safe, the above testimony on behalf of the appellee made it a question for the jury to say as to whether or not the appellant had exercised ordinary care to furnish a safe derrick.

2. Appellant contends that the falling of the derrick was an inevitable accident. Bunting, at the time of his death, was hooking tongs in the end of a log. He was assisted by a fellow-employee at the other end of the log. These employees stood at the opposite ends of the log and each hooked the tongs in the end next to him. They fastened their hooks in each end of the log and a signal was given to the derrick operator to lift the log. He made two or three efforts to lift same, and raised the log between three and six feet from the ground. While the log was suspended in this position the hooks of Tardy, Bunting's fellow-employee, pulled out causing his end to fall to the ground instantly, and the derrick fell at the same time the hooks pulled out. It is contended by the appellant that the jerk caused by this fall caused the derrick to give way by breaking the guy wire...