C. Jones & Harrington v. Scott

• Decision Date: 04 January 1915
• Docket Number: 86
• Citation: 172 S.W. 840,116 Ark. 108
• Parties: C. JONES & HARRINGTON v. SCOTT
• Court: Arkansas Supreme Court

172 S.W. 840

116 Ark. 108

C. JONES & HARRINGTON v. SCOTT

No. 86

Supreme Court of Arkansas

January 4, 1915

Appeal from Garland Circuit Court; Calvin T. Cotham, Judge affirmed.

Judgment affirmed.

Scott Wood, for appellant.

1. The doctrine of res ipsa loquitur does not apply between master and servant. 79 Ark. 81; 51 Id. 479; 87 Id 374; 46 Id. 555.

2. Appellee was guilty of contributory negligence. 70 Ark. 603; 36 Id. 149; 95 U.S. 439; 3 Labatt, Master and Servant, § 1251, note 8; 84 Ark. 377; 85 Id 237; 96 Id. 461; 100 Id. 441; 77 Id. 405; Labatt, M. and S., vol. 3, § 1280. The danger was open and obvious. 4 Labatt, M. and S., § 1362-3.

3. There is error in the court's charge. The defenses of assumed risk and contributory negligence are separate and distinct. 77 Ark. 367; 89 Id. 424-8; 92 Id. 109; 3 Labatt, M. and S., § 1222-5; 36 Ark. 49.

4. It was error to admit as evidence the contract with Maurice. Abbott's Civ. Jur. Trials, 308; Abbott's Proof of Facts 51-404; 104 Ark. 1; 31 So. 790; 4 Labatt, M. and S., § 1593, note.

B. H. Randolph and T. P. Farmer, for appellee.

1. The evidence is overwhelming that defendants were guilty of negligence in the use of the hoisting apparatus. Negligence can be inferred where reasonably safe appliances are not provided. 95 U.S. 439. No warning was given. 106 Ark. 25; 95 Ark. 291, 295.

2. There is no error in the instructions. 77 Ark. 405; 2 Thompson on Negl., vol. 5, §§ 5380 and 5345.

3. A servant does not assume the risk unless he is aware of the danger. 77 Ark. 367; 89 Id. 424; 92 Id. 109.

4. There was no error in admitting the contract as to insurance. The contract was only material to show whether appellants were independent contractors or not. No prejudice resulted. 104 Ark. 1; 99 Minn. 97; 9 Am. Cases 318; etc.

A. J. Murphy, for appellants in reply.

OPINION

MCCULLOCH, C. J.

Appellants are contractors engaged in building houses, and, while putting up a building in the city of Hot Springs for one Maurice, they employed appellee as a laborer. He received personal injuries while engaged in his work and instituted this action against appellants and Maurice to recover compensation for his injuries. After all of the testimony was introduced, the court gave a peremptory instruction in favor of Maurice, but submitted to the jury the issues raised by the pleadings as to the liability of appellants, and the jury found against them, assessing damages in the sum of $ 1,500.

Appellee was a common laborer, engaged in doing any kind of work about the building which he was called to do by Glenn, the foreman. He assisted the brick masons by carrying up brick and mortar, and also assisted the carpenters when directed to do so. At the time he was injured, the workmen had just raised a heavy iron beam called an "I" beam, and after it was raised it fell to the pavement, and appellee being, as the evidence tends to show, ascending a ladder from the cellar below, to the pavement, it fell on him and fractured his arm and also his leg and inflicted other serious injuries. He was confined to a hospital for ten days and suffered great pain. He expended about $ 600 in hospital and physician fees and in paying other expenses of his illness. There is no question about the assessment of damages being excessive if he is entitled to recover anything at all.

It was a two story building and the walls of the upper story had been built, the front of the building still being open. The beam was to be raised to the floor of the second story and placed, or "seated" as it is termed, with the ends projecting into the walls on each side. It was very heavy and was raised by means of a block and tackle, suspended on a snub-beam, extending out a few feet over the sidewalk. The snub-beam was constructed of two 2x14 pieces of timber, twenty-six feet long, extending over two other upright pieces 2x14, which carried the weight. The two pieces forming the snub-beam were placed together, resting on edges, and at the back ends were fastened by cleats. Two braces were used over the front end of the snub-beam, being pieces 2x6 in dimensions, and extending from either wall over the beam, being spiked together and also spiked to the beam. Appellee and four or five other men were placed in the cellar to raise the beam by pulling on the rope, and when it was raised up above the place where it was to be seated, the rope was tied to a beam or pillar in the cellar to hold it in place until ready to be lowered into its seat. The beam was raised in that way and the rope tied in the cellar and appellee went up a ladder to the pavement for the purpose of going up to the second story to wait on the brick masons, and just as he got up to the pavement on the ladder the "I" beam fell from above and struck him. The testimony shows that one of the 2x6 braces broke loose, which released the two pieces constituting the snub-beam, and they rolled over, which caused the "I" beam to fall. The negligence of appellants, if any, consisted in failing to securely fasten the braces so that they could not come loose. It is not contended that any of the timbers broke; therefore, there was no negligence in any other respect.

It is insisted that the evidence is not sufficient to sustain the charge of negligence. Appellants introduced a number of witnesses who testified that the appliance for raising the "I" beam was constructed in the most approved method and was the customary way of doing it, and their testimony tended to show that there was no negligence in the way in which this appliance was constructed. We think, however, the jury were warranted in finding that the braces were not spiked or nailed with sufficient strength--either that the nails were too small or not driven in far enough, and that there was negligence in this respect. While the doctrine of res ipsa loquitur is not applicable, the jury were warranted in finding from a description of the appliance, and the manner in which the braces came loose, that they were not nailed with sufficient security, and that there was negligence in that respect. This was an appliance which was furnished by appellants and they owed the duty to the servant to exercise ordinary care to see that it was reasonably safe. The happening of the injury itself did not necessarily make out a case of negligence, but under the circumstances the jury could draw the inference that these braces were not put together with sufficient strength.

It is also contended that the undisputed evidence shows that the plaintiff was directed not to come out under the beam, and for this reason he was guilty of contributory negligence and the verdict in unsupported. There is a conflict in the testimony as to what took place and our conclusion is that there was enough to go to the jury on the question of contributory negligence. Mr. Jones, one of the appellants and also the foreman, testified that they gave appellee specific directions along with the other workmen not to go underneath the beam. They testified also that when the beam was raised, and the rope was tied so as to keep it suspended until they were ready to seat the beam, the other men in the cellar were called out, but that the...