Chess & Wymond Company v. Wallis

• Decision Date: 29 April 1918
• Docket Number: 332
• Citation: 203 S.W. 274,134 Ark. 136
• Parties: CHESS & WYMOND COMPANY v. WALLIS
• Court: Arkansas Supreme Court

203 S.W. 274

134 Ark. 136

CHESS & WYMOND COMPANY v. WALLIS

No. 332

Supreme Court of Arkansas

April 29, 1918

Appeal from Boone Circuit Court; John I. Worthington, Judge affirmed.

Judgment affirmed.

Brundidge & Neelly, for appellant; Ben F. Williamson and J. M. Shinn of counsel.

1. Defendant's peremptory instruction should have been given. There was simply an accident which was unavoidable and not to have been foreseen by defendant or its employees. There was no negligence proven as the proximate cause of the accident, nor could it have been foreseen. 86 Ark. 289; 108 Id. 483; 91 Id. 260; 113 Id. 60.

2. It was error to give plaintiff's instruction No. 1. It was objected to generally and specifically. There was no duty to warn as the plaintiff was experienced and the danger was as obvious to him as to the foreman. 97 Ark. 486; 93 Id. 153; 96 Id. 500; 107 Id. 341.

3. The cause should be reversed for the improper statements and argument of counsel. 103 Ark. 356; 120 Id. 494; 100 Id. 437; 70 Id. 427; 58 Id. 368; 56 Id. 625.

4. The verdict was reached by lot. 29 Cyc. 812; 39 Cal. 485; 6 Idaho 231; 160 Mass. 395; 34 P. 185.

5. Appellee assumed the risk. 96 Ark. 390.

6. There is error in the other instructions given and refused.

E. G Mitchell, for appellee.

1. Appellee was an inexperienced minor, while the foreman was experienced. The attention of the foreman was called to the danger, and yet he ordered appellee to go under that dangerous limb to work and he obeyed, not appreciating the danger. A clear case of liability is shown and the verdict is very small. 53 Ark. 117; 87 Id. 471; 95 Id. 278. There is no error in the instruction, and the verdict is fully sustained by the evidence.

2. The verdict was not reached by lot. Kirby & Castle's Dig., § 2594; 67 Ark. 262; 66 Id. 264.

3. The remarks of attorney for appellee were not prejudicial. The jury were properly admonished by the court and all prejudice removed. This is shown by the smallness of the verdict. There are no reversible errors.

OPINION

SMITH, J.

On May 27, 1914, while appellee was engaged in cutting stave bolts for the appellant company, he was injured by a limb falling from a tree which struck him on the head. He sustained a very serious injury, and brought this suit through his father as next friend to recover damages to compensate the injury. On appellee's behalf the testimony was to the effect that he was directed by his foreman, a man named Norman, to saw a log lying under the hanging limb, when appellee called attention to the limb, but was assured by Norman that there was no danger of the limb falling. Appellee commenced the task to which he was assigned and while so employed the limb fell upon him. Norman denied having seen the limb or having given any assurance as to the absence of danger. Appellee was nearly grown at the time of his injury and had had several years' experience working in timber, notwithstanding his youth, but he testified that he relied upon the assurance of Norman that the limb would not fall, and that it was only because of this assurance that he commenced working under the limb.

Over appellant's objection the court gave the following instruction:

"1. If the defendant, by its authorized agent, ordered plaintiff into a place of danger, to aid in cutting up a tree, and plaintiff by reason of youth and inexperience did not know of and appreciate the danger of the situation and defendant knew this, or ought in the exercise of ordinary care on its part to have known it, then it was the defendant's duty to warn him of this danger so that, as far as might be by proper care on its part, plaintiff could perform his duty in safety to himself; if the defendant failed in this respect, and plaintiff, while exercising due care for his own safety, by such failure, suffered the injuries sued for, then plaintiff should recover in this action."

To the giving of this instruction appellant at the time objected generally, and further objected specifically for the reason that under the law and the evidence as testified to by appellee himself the company did not owe to him any duty of warning as to his own safety because his experience in such employment showed there was no necessity for warning him.

In passing upon the objection made to this instruction it is proper to say that the court gave at appellant's request a number of instructions declaring the law as contended for by it; in fact, the court gave all the instructions requested by appellant. And while it is true that appellee was not an inexperienced timber man, he was still a young man, and we think the record presents a question of fact which should have been submitted to the jury, and that is, whether appellee had the right to rely on Norman's assurance of the safety of the place to which he was assigned to work. The instruction is not happily framed to present the exact issue in the case, but we think it was not erroneous when read in the light of and in connection with the other instructions. No objection was made to the instruction other than the one just indicated, therefore no other will be considered now. The warning of which the instruction speaks may not have enabled appellee to perform his work any more safely, but appellee says the assurance of safety induced him to take the place assigned to him.

It is argued that the danger was open and obvious and that Norman could not have had any more knowledge of the danger than appellee himself had, for according to appellee's testimony the presence of the suspended limb was known alike to both himself and Norman. But it is just here that we think the jury question arises. The master is presumed to know the hazards of the employment and the servant has the right to rely on the assurance of safety, unless the danger is so open and obvious that its existence is both known to and appreciated by the servant. The rule is stated in 4 Labatt on Master and Servant (2 ed.), page 3965, as follows:

"But it has been held that the assurance of safety given by the master may be of such a character as to take away all question of assumption of risk even if the risk is known to the servant. The same effect is reached in a number of cases which hold that the servant may recover if he is injured while relying upon an assurance of safety unless the danger was so great and imminent that a reasonably prudent man would not have incurred it."

We can not say that the jury did not have the right to take into account appellee's age and experience as contrasted with that of his foreman and to find therefrom that appellee had...