Casey v. Wisconsin & Arkansas Lumber Company

• Decision Date: 08 March 1920
• Docket Number: 242
• Citation: 219 S.W. 12,142 Ark. 584
• Parties: CASEY v. WISCONSIN & ARKANSAS LUMBER COMPANY
• Court: Arkansas Supreme Court

219 S.W. 12

142 Ark. 584

CASEY v. WISCONSIN & ARKANSAS LUMBER COMPANY

No. 242

Supreme Court of Arkansas

March 8, 1920

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

D. D Glover, for appellant.

The photograph taken two months after the injury was not admissible in evidence. 48 Ark. 460; 118 Id. 50.

The court erred in excluding the evidence of Keyton and Davis in rebuttal and the verdict is against the law and the testimony.

T. D Wynne and W. R. Donham, for appellee.

1. The photograph was properly admitted in evidence. 73 Ark. 183; 80 Id. 528.

2. The testimony in rebuttal was properly excluded, as it was not competent. 116 Ark. 125; 121 Id. 233. The evidence was cumulative merely.

3. The appellant failed to abstract the record and the judgment should be affirmed.

OPINION

HUMPHREYS, J.

Appellant instituted suit against appellee in the Hot Spring Circuit Court to recover damages on account of an injury received to his hand while cleaning up shavings and sawdust in the rear of a planing machine in appellee's mill. The charge of negligence consisted in appellee allowing a small saw, attached on the back side of the planer, to become covered with sawdust and shavings, while being operated, so that it could not be seen by appellant, and in operating it without a sufficient shield or hood, or notification to appellant of its presence in the pile of sawdust and shavings.

Appellee filed an answer, denying the material allegations of negligence in appellant's complaint.

The proof offered by both appellant and appellee was directed to the issue of whether or not the small saw attached to the planer was concealed by sawdust and shavings piled around and upon it at the time appellant received his injury.

Appellee, over the objection and exception of appellant was permitted to introduce a photograph of the machine made subsequent to appellant's injury. This is assigned and insisted upon as reversible error. It is suggested that the photograph, made subsequent to the injury, was not a true representation of the machinery as it existed at the time the injury was inflicted. Tom E. McHenry, a witness, gave testimony to the effect that the photograph was a correct representation of the machinery as it existed at the time of the injury. It is said, however, that the photograph was prejudicial to appellant's cause of action, because made at a time when there was no sawdust or shavings around or upon it. The court guarded this point by stating to the jury that they should not consider the photograph other than to show the location, height and position of the saw, and should not regard it as evidence tending to show whether or not the saw was covered with shavings and sawdust at the time of the injury. Guarded in this way, we do not see how appellant's cause of action could have been prejudiced by the introduction of the photograph.

Appellant insists that the court erred in refusing the proffered testimony of Hosey Keyton and W. H. Davis in rebuttal, which offer is as follows: "The plaintiff (appellant) offers the testimony of Hosey Keyton, who is present and who has been under the rule and subpoenaed in this case, who would testify that he worked at the same machine at which Mr. Casey was hurt, as cleanup man immediately after Mr....