Chapman & Dewey Land Company v. Woodruff

• Decision Date: 04 January 1915
• Docket Number: 96
• Citation: 173 S.W. 188,116 Ark. 189
• Parties: CHAPMAN & DEWEY LAND COMPANY v. WOODRUFF
• Court: Arkansas Supreme Court

173 S.W. 188

116 Ark. 189

CHAPMAN & DEWEY LAND COMPANY v. WOODRUFF

No. 96

Supreme Court of Arkansas

January 4, 1915

Appeal from Craighead Circuit Court, Jonesboro District; J. F Gautney, Judge; affirmed.

STATEMENT BY THE COURT.

This is a suit for damages for personal injuries alleged to have been received by appellee on account of the negligence of some other servants of appellant company, with whom he was working in felling trees. Appellee notched the trees with an axe on the side in the direction the tree was expected to fall, and Lynne and Harbison were cutting the trees down with a cross-cut saw. They stood or knelt with their backs toward the notch and sawed from the opposite side. Appellee had notched this tree, which was twelve or fourteen inches in diameter and had gone on to another and cleaned the vines away from it, preparatory to notching it. The others sawed this tree through and it fell, making very little noise, and struck the appellee who was near the other tree, injuring him severely, no warning having been given by the sawyers that the tree was about to fall. He was knocked down, his right leg broken below the hip, his shoulder sprained and a deep gash cut in his head and received other minor bruises and cuts. He was confined to his bed about eight weeks, suffering great pain and the crippled leg is now about an inch shorter than the other.

He alleges that it was the custom of the sawyers, and that they had agreed to warn him by hallooing "timber" or "look out," when the tree was sawed through and ready to fall, that defendant negligently failed to give him any warning on account of which he suffered the injury.

The answer admitted that appellee was employed by the appellant company and engaged in the felling of trees, it being his duty to notch them ahead of the sawyers; alleged that he was an experienced man, knew that the tree would fall in the direction that it was notched; that he had notched this tree which was a small one, immediately before it was sawed down knew the size and height of it and the direction it would fall, and it was his duty to protect himself from harm against the falling of it; that he assumed the risk of any danger therefrom and was guilty of contributory negligence in standing within the reach of it.

The injury occurred on January 21, 1911, and on February 10 1914, appellant filed an amended answer containing the allegations of the original answer except that it denied that the appellee was employed by it at the time he was injured. This amended answer was stricken out upon the motion of the appellee, alleging that the complaint was filed on December 14, 1911, and the answer at the following term, that the complaint alleged that at the time of the injury appellee was in the employ of the defendant which allegation was admitted by the answer, and that the amended answer denied that appellee was in its employ, without stating by whom he was employed. The motion to strike, further alleged that if he was not employed by the Chapman & Dewey Land Company appellant, he was employed by the Chapman & Dewey Lumber Company; that both corporations are owned by the same stockholders and had the same officers, the lumber company being engaged in the manufacture of lumber cut from the land owned by the land company, the title to the real estate being held by the land company and the timber manufactured by the lumber company, merely as a convenience. That appellee had been employed about a month prior to his injuries, his wages had been paid in cash, that he did not know by which of these companies he was employed, and that prior to the institution of the suit, the attorney for the land and lumber company informed his attorney that the land company, appellant, was his employer, and the proper defendant to the suit. That he relied upon this information and the admission of his employer in the answer, and had no intimation to the contrary until the filing of the amended answer of February 10, 1914, and that the statute of limitations had run in favor of the lumber company.

An affidavit of the manager of the lumber company, explaining the conditions under which the lands were held and the timber cut was filed with the amended answer, which stated also that the stockholders and the general officers of the two corporations were practically the same. The amended answer was stricken from the files over appellant's objection. Judgment was recovered against appellant company, a motion for a new trial was filed and as an amendment thereto an offer in writing of the Chapman & Dewey Lumber Company to stipulate with appellee that in the event that a new trial was granted herein and suit begun against it, it would not plead the statute of limitations against plaintiff's cause of action.

It appears from the testimony that appellee was twenty-four years old at the time of the injury, was engaged in cutting underbrush and notching trees with an axe to be sawed by Lynne and Harbison. He chopped a notch on one side of the tree, the way it was expected to fall, and it was sawed through from the other side, falling across the notch. That he knew when the tree was going to fall by Lynne and Harbison hallooing "timber" or "look out," and that he would then get out of the way of the falling tree after being so warned. He stated, "I had no way of knowing when a tree was going to fall, except the signal, unless I would be watching; sometimes I would be behind a tree top from where they were working, and could not see the tree. I first learned that notice would be given when a tree was about to fall, from Lynne and Harbison; they said they would halloo; that was when I first began to work there, and they hallooed always. After I was hurt, Mr. Lynne came to my house while I was in bed, and told me the reason why they didn't halloo that time, was that they just neglected to do it, it being about quitting time."

Harbison testified that he was working with Lynne and Woodruff, appellee, sawing trees with a cross-cut saw; that Woodruff was cutting down the small brush and notching trees ahead of them. The brush was small, there was little to do, and they were sawing the trees down just about as fast as Woodruff could notch them, and "we had always been in the habit of notifying the boy when we had cut the trees so that they were ready to fall, but we failed to notify him in time to save him when this tree fell; when the tree started to fall, we just stepped back and looked around and saw the boy, and it was too late to save him then. The tree was right on him when we hallooed at him; we had been in the habit of notifying him when the trees were ready to fall and had done this every day. Woodruff was about forty-five feet from the tree, which was twelve or fourteen inches in diameter, and we did not halloo at him sooner because it was near quitting time, and we were tired and just neglected to notify him; both Lynne and myself told him at different times that we would halloo at him when the tree was going to fall; he did not know what tree was going to fall. The tree made very little noise when it started to fall; it did not pop, didn't crack any, and we would not have known it was falling if we had not been looking at it."

Lynne testified that he had never hallooed "timber" to the appellee when a tree was about to fall, nor had he ever promised to do so, and said it was appellee's business to know the way the tree was going to fall, that as they began sawing it, he said to appellee, "You know which way it is going to fall; look out for yourself;" we sawed the tree, it started to fall and I took my axe and walked out of the way; Harbison had the saw and he said, "Why don't you get out of the way there before that tree will catch you?" I looked around and the tree was twelve or fourteen feet from him, and I said, "Why don't you get out of the way?" Neither Harbison nor I knew where appellee was at the time the tree fell; I didn't know which way he went, didn't know whether he was standing at the side of us, or had walked off. I said, "You can look out for yourself; you know which way the tree is going to fall." The tree was pretty nearly straight.

On cross examination he stated that he had told appellee to look out because he was standing in the way of the falling tree, and further: Q. Had you ever told him before that to look out? A. Oh, I told him several different times. Q. Well, have you done that when a tree began to fall, or when you commenced to saw a tree, or both? A. Well, I can't hardly answer that; when we would start to sawing, I would look up and see which way the tree would fall, and say, "Boys, you must look out for this tree."

The man Harbison who...