Chicago Mill & Lumber Co. v. Wells

• Decision Date: 18 December 1911
• Citation: 142 S.W. 1131
• Parties: CHICAGO MILL & LUMBER CO. v. WELLS.
• Court: Arkansas Supreme Court

Page 1131

142 S.W. 1131

CHICAGO MILL & LUMBER CO. v. WELLS.

Supreme Court of Arkansas.

December 18, 1911.

Appeal from Circuit Court, Green County; Frank Smith, Judge.

Action by H. B. Wells against the Chicago Mill & Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Coleman & Lewis, for appellant. J. T. Coston, for appellee.

HART, J.

This is an action for damages for personal injuries brought by H. B. Wells against the Chicago Mill & Lumber Company. The defendant owned a small portable wood saw, operated with a gasoline engine. The machine was constructed upon a frame on wheels, so that it could be moved about from place to place. It was used for the purpose of sawing up odds and ends of lumber into firewood, and was operated by a crew of three men, consisting of a sawyer and two assistants, one of whom brought the sticks or pieces of lumber to be sawed, and the other caught the pieces after they had been sawed and threw them away from the saw. The plaintiff was employed as a member of this crew, and admits that it was his duty to fill any one of the three positions. He was injured on the 15th day of January, 1910, while running the saw, and John Walden was carrying the sticks to the saw carriage, and Sherman Watson was carrying them away after they had been sawed. Sherman Watson was not there when the accident happened, and the plaintiff, Wells, knew he was absent. The injury occurred in this way: Wells had his right hand on some stacking sticks, which he was sawing, and with his left hand was pushing the carriage. The saw hung in a stick, and jerked his right hand down on the saw, with the back of his hand towards the saw. Three of his fingers were cut all to pieces, and his little finger was cut half off. The plaintiff says that the saw was defective in three particulars: First, that the set screw which holds the collar to the shaft to which the saw was attached had worn loose, thereby permitting a lateral play of the shaft and saw; second, that the space between the carriage and saw was too wide; and, third, that there was no apron or support on the outside of the saw. Plaintiff states that the wobbling of the saw caused the injury. He admits that he knew of the condition of the saw, and appreciated the dangers of using it in that condition; but he says the defendant had promised to repair it, and that he continued to operate the saw after the promise was made, in reliance of its fulfillment.

John Walden testified: "I was working for the defendant company at the time Wells was injured. I was laying the strips on the carriage, and Wells was operating the saw and carriage." After stating the defects in the saw and carriage as above set forth, we quote from the record his testimony on the promise to repair, as follows: "Q. Did you ever call any one's attention to the condition of the saw? A. Yes, sir. Q. Whose attention did you call? A. I showed it to Mr. Bates one day. Q. About how many days was that before Wells was injured? A. Something like a couple of weeks I think, the best I recollect. Q. Was Wells present? A. Yes, sir. Q. Was Bates' attention called to the other things you have mentioned, the floor and no outside support, and so on? A. Yes, sir. Q. What did Bates say, if anything? A. Said he would fix it. Q. Who is Bates? A. He is master mechanic."

Walden also stated that he had a conversation with Wells about the condition of the set screws the day before the injury occurred, and, upon being asked to go ahead and tell the jury what was said, answered: "Mr. Wells said: `I have told Bates about it, and he wouldn't fix it,' and I said, `I would go to the commissary and get some screws and fix it myself,' and he said, `I went up there two or three times after files, and Walters wouldn't notice me, and I don't think there is any use in going any more.'" He said, if he would not give him files, he would not give him screws.

H. B. Wells testified that, when he first made complaint to Bates about the saw, Bates did not pay any attention to him, and that he still continued to work because he had to work for a living and jobs were scarce. On the question of the promise to repair, we quote his testimony from the record as follows: "Q. Tell the jury whether or not you heard a conversation between Walden and Bates with reference to the condition of the machinery? A. I did. * * * Mr. Walden told him that the machinery was not in the right condition, and he said it ought to be fixed, and Bates said, `I will fix it,' but he never said when. Q. Did he say anything about going ahead and using it or not? A. Yes; he said to go ahead and use it. Q. Where were you at the time it occurred? A. John Walden and me were there at the machine together, and Sherman had gone off after gasoline. Q. Where was Bates? A. He was at the machine with us. Q. Did Bates know that you heard what took place? A. Yes, sir. Q. What was he talking about when he said he would fix it? A. He was talking about that set screw in the collar part of it. We required a piece on the side of the carriage, and they never put that on. Q. What do you mean by requiring another piece on the side of the carriage? A. Another cross-piece like them three was. Q. What do you mean by another cross-piece? A. Like them three that was on it, to hold the wood up. Q. To extend the floor of the carriage out to the saw? A. Yes, sir; to extend the floor of the carriage to the saw. Q. That is what you mean when you say that you required another cross-piece. A. Yes, sir. Q. Was anything said in that conversation about having no outside support? A. No, sir. Q. Was this discussion about the putting of the other piece on the carriage so as to make the floor come out to the side of the saw in the same conversation that you discussed the collar and the set screw? A. Yes, sir; at...