Central Coal & Coke Company v. Graham

• Decision Date: 18 June 1917
• Docket Number: 47
• Parties: CENTRAL COAL & COKE COMPANY v. GRAHAM
• Court: Arkansas Supreme Court

196 S.W. 940

129 Ark. 550

CENTRAL COAL & COKE COMPANY v. GRAHAM

No. 47

Supreme Court of Arkansas

June 18, 1917

Appeal from Lawrence Circuit Court, Eastern District; Dene H Coleman, Judge; affirmed.

Judgment affirmed.

Ira D Oglesby, for appellant.

1. The court erred in not granting the petition to remove the cause to the United States court. Plaintiff was a resident of the Western District and could have sued there. Defendant was doing business in, and was found in that district, where the injury occurred. This is a different case from 203 U.S. 449 and 98 Ark. 507. There neither party resided in the district nor could be found there. The right to remove is clear. 205 F. 821; 222 Id. 979; 211 Id. 343; 218 Id. 91.

2. A continuance should have been granted. Not having done so the court should have postponed the trial until the arrival of witnesses en route to court and until the return of attachment issued for subpoenaed witness. The testimony was material and due diligence shown. Under the state of facts shown the court abused its discretion and it was a denial of justice. Judicial discretion is subject to review by this court.

3. The court erred in the admission and exclusion of testimony. Defendant moved to exclude the statement of plaintiff that the rock would have remained up if it had not been dynamited and his testimony that he would not have worked there if he had known that five sticks of dynamite had been exploded on the rock, was not a test of negligence. This testimony was not competent. Hale's testimony that the rock broke in the center, etc., should have been excluded. Where part of a conversation, or written statement is introduced by one party, the other is entitled to have all that was said or written on the subject introduced.

4. Defendant's peremptory instruction should have been given. The testimony fails to show carelessness and negligence in failing to exercise ordinary care to protect plaintiff from danger, etc. The fact that plaintiff was not informed that the rock had been dynamited is not charged as an act of negligence. Nor was it proven that by dynamiting the rock it was made "weak, insecure and unsafe for those working near it," etc. The testimony fails to show that dynamiting the rock was the proximate cause of the injury as alleged. The burden was on plaintiff to prove the acts of negligence alleged and that this was the proximate cause of his injury. 116 Ark. 82; 105 Id. 161; 138 S.W. 538; 70 So. 467; 88 S.W. 767; 96 Id. 1045; 190 F. 717; 65 So. 981; 133 N.W. 142; 163 N.Y. 527; 42 Mich. 41; 48 S.E. 508; 133 N.Y. 659.

5. It was error to give instruction No. 1 for plaintiff. It should have been modified as asked by defendant. The court also erred in refusing the instruction asked by defendant. See Labatt on Master & Servant, 1177; 67 F. 507; 82 Ark. 499; 96 Id. 206.

6. The motion to dismiss should have been sustained. Kirby's and Castle's Digest, § 929 and § 7150.

7. The damages are excessive.

Ponder & Gibson, R. W. McFarlane and Pace, Seawell & Davis, for appellee.

1. The order of the judge in overruling the motion for a new trial and extending the time for filing the bill of exceptions and granting an appeal were without authority and void. The statute permitting the judge in vacation to act on a motion for new trial, if valid, only applies to cases where the verdict was rendered within three days of the final adjournment of court. Kirby & Castle's Digest, § 7657. However, this statute is invalid because it gives a judge the power and authority of a court in vacation and vests him with judicial powers. Const. Art. 7, § 14. The appellant's abstract is not sufficient for the reason that the motion for new trial is not sufficiently set forth; it is too general. Nor does it identify the instructions alleged to be erroneous.

2. The petition to remove was properly refused. 48 Ark. 507; 107 Id. 512.

3. There was no error in refusing the continuance, nor in failing to postpone the trial. There was no abuse of discretion. 82 Ark. 105; 99 Id. 582; 71 Id. 62; 40 Id. 114. Due diligence was not shown. 71 Ark. 65; 84 Id. 81; 121 Id. 160; 95 Id. 291; 147 S.W. 459; 110 Ark. 408; 86 Id. 317; 80 Id. 376; 94 Id. 538.

4. There was no error in the admission or rejection of testimony. Timely objections were not made. 9 Ark 389; 79 Id. 204; 78 Id. 220. However, the evidence objected to was competent and that excluded incompetent.

5. The evidence substantially supports the finding and the peremptory instruction was properly refused. It is the duty of the master to warn the servant of any increased danger caused by a change in the working place, and a neglect to do so renders him liable where such change increases the hazard and is the proximate cause of the injury, as here. 103 Ark. 618; Sherman & Redf. on Negligence, p. 625; 78 Ark. 213; 111 Id. 486; 3 Labatt on Master & Servant, §§ 1146, 924 and notes. There is no error in either the giving or refusal to give the other instructions.

6. Appellee did not assume the risk. 124 Ark. 586.

7. The motion to dismiss was properly overruled. The question of service was waived. 115 Ark. 524.

8. The verdict is not excessive. The jury were moderate under the evidence.

OPINION

MCCULLOCH, C. J.

The defendant, Central Coal & Coke Company, is a corporation organized and existing under the laws of the State of Missouri, with its principal place of business at Kansas City, Mo., and it was, at the time of the occurrence which forms the subject-matter of the present litigation, and is now engaged in operating coal mines in the State of Arkansas, in one of which the plaintiff, W. E. Graham, was employed as a miner. The plaintiff received very serious personal injuries while he was shoveling coal in one of defendant's mines, the injury being caused by the falling of a rock which had formed a part of the roof of the room in which plaintiff was at work.

This is an action to recover damages caused by alleged negligence of the defendant in rendering the working place unsafe without giving notice to plaintiff of the change in the condition of his working place. A trial before a jury resulted in a verdict in favor of plaintiff for the recovery of a large sum of money as compensation for his injuries.

The first question presented is whether or not the motion for a new trial and the bill of exceptions were filed in apt time and acted on by the court so as to bring before us for review the proceedings in the trial court. The action was instituted and tried in the circuit court of Lawrence County, for the Eastern District, which sits at Walnut Ridge. The trial was begun on October 20, 1916, and was concluded on Saturday, October 21, which was the last day of the term, unless there was an adjournment over to another day after the completion of the term of court in another county as fixed by law to begin on Monday, October 23. At the request of defendant, the court made an order allowing defendant to present its motion for a new trial within ten days from that date, and then an order of adjournment was taken over to Monday, January 29, 1917, which was the day fixed by law for opening a term of court in Jackson county, one of the counties in the same judicial circuit. Defendant filed a motion for new trial with the clerk of the Lawrence Circuit Court on October 24, which has never been acted on by the court, and also presented another motion for new trial to the circuit judge in vacation on November 1, after due notice to plaintiff's counsel, and the judge made an endorsement on the motion to the effect that it was overruled and granting an appeal to the Supreme Court, and allowing ninety days within which the bill of exceptions could be filed. That motion, with the endorsement thereon of the circuit judge was filed with the clerk of the Lawrence Circuit Court on November 2, and has been brought up in the transcript, together with the bill of exceptions, which was filed within the ninety days allowed.

A statute of this State governing presentation of motions for new trial in civil actions at law contains the following provision:

"Provided, that where the verdict or decision is rendered within three days of the expiration or adjournment of the term, a motion for a new trial, with an alternative prayer for appeal to the Supreme Court ill case said motion be overruled, may be presented, upon reasonable notice to the opposing party or his attorney of record, to the judge or chancellor, or his successor in office, of the district in which said verdict or decision was rendered, wherever he may be found, at any time within thirty days, from the date of the verdict or decision, and such judge or chancellor shall pass upon said motion and endorse his ruling thereon, upon the back of the motion, either granting the motion or overruling same; and if said motion be overruled he shall also endorse upon said motion, his order granting an appeal to the Supreme Court, and his farther order specifying a reasonable time allowed in said cause for filing a bill of exceptions. Upon filing such motion and the judge's order thereon, with the clerk of the court where the cause is pending it shall become a part of the records and files of the cause, and shall have the same legal effect as if same had been filed in term time, as now provided by law." Kirby's Digest, sec. 6218, as amended by act of May 31, 1909, p. 890.

The statute, prior to the amendment just referred to, required that a motion for new trial be filed during the term, except on certain grounds not involved in the present inquiry, and the contention of counsel for plaintiff is that the amendment whereby there was an attempt to authorize a circuit judge in vacation to rule on motions for new trial is void. The...