Chicago Mill & Lumber Co. v. Johnson

• Decision Date: 06 May 1912
• Citation: Chicago Mill & Lumber Co. v. Johnson, 147 S.W. 86, 104 Ark. 67 (Ark. 1912)
• Parties: CHICAGO MILL & LUMBER COMPANY v. JOHNSON
• Court: Arkansas Supreme Court

147 S.W. 86

104 Ark. 67

CHICAGO MILL & LUMBER COMPANY v. JOHNSON

Supreme Court of Arkansas

May 6, 1912

[Copyrighted Material Omitted]

Appeal from Mississippi Circuit Court, Chickasawba District; Frank Smith, Judge; reversed.

STATEMENT BY THE COURT.

Defendant is a corporation engaged in the sawing and manufacturing of lumber at Blytheville, in Mississippi County, Arkansas. Plaintiff was in its employ. He brought this suit for damages, alleging that while the plaintiff was engaged in the performance of his duties as "tripper," a slab being conveyed by live rollers from the saw to the tripper chain or conveyor, became fastened in the tripper chain, and it was plaintiff's duty to remove the slab and readjust it, and while engaged in the performance of that duty it was the duty of Frank Sherrod, the edgerman, and also of John Young, the off-bearer, to throw the lever and deaden the live rollers and stop their movement to prevent injury to the plaintiff; that, notwithstanding this fact, and knowing the plaintiff's danger, which was to them apparent, they sent a slab or board moving down the live rollers while plaintiff was engaged in the performance of his duty removing the slab that had become fastened in the chain, and that said board or slab moving down the live rollers struck the plaintiff and crushed his arm and wrist.

The answer denied the material allegations of the complaint, and set up assumption of risk and contributory negligence.

The general superintendent of the defendant described the mill and machinery where Johnson worked as follows:

"The mill sets north and south. The saw is in the north end, and the roller system extends from the saw south. It is 108 feet long, thirty-six inches high, and forty-two inches wide. The rollers are twelve inches in diameter, thirty-six inches long, and are set four feet apart. The system is divided into two sections, and each section is driven independently of the other. The first section is sixty feet long, and extends from the saw to a point a trifle south of the edger tripper, and contains sixteen rollers. It has no connection with the other section. It is controlled by a lever located at the point where the off-bearer stands.

"The second section commences at a point just south of the edger tripper, and extends two rollers beyond the transfer to the trimmer. It is approximately forty-four feet long, it contains twelve rollers. There is a passage way between the two sections, which is covered by an apron. This apron could be lifted so as to permit of a clear passage. The lever that controls the second section is located at the south end of the edger table. Just above Johnson's position when tailing the edger, there is a hand-hold used for tripping the transfer that carries slabs from the live rollers to the slasher-chains and by them to the slab saws. If this hand-hold or rope were extended to the floor, it would touch a point less than twelve inches from the lever that controls the second section. Within eighteen inches is a foot trip used for transferring lumber from the live rollers to the tripper table.

"When the lever is pulled, it not only stops the rollers of the second section, but it stops the slab chains also. The power operates on the live rollers by what is commonly termed a double beveled friction. No roller can turn independently of the others, and they can not be turned by hand at all. The chains that divert from the roller system to the edger are located in the first section, and are controlled by a pedal located where the edgerman stands. The live rollers are laid into the surface or top of the table and extend about an inch above it. A man standing in Johnson's position while tailing the edger could reach three of the controlling levers mentioned above."

The plaintiff describes the manner of his injury as follows "Sometimes a slab would get caught under the slab chains, and it was my duty to get them out. On the second day of my last employment I was injured while removing a slab from these chains. It had a sharp point which caught under the chains. I noticed it flopping under the chains, and the block-setter and off-bearer motioned to me to get it out. When I crossed over the live roller run, I looked to see if the edger had his board up. The board was up, and I saw that the next good plank was going to the edger. I thought that all the good plank were going that way, and that nothing would come on me. If the board had been kept up, nothing could have reached me. I clamped my arms around the slab that was caught and was trying to pull it out. Another piece that was coming down the live rollers struck my left arm just above the wrist and injured it. This could have been prevented by the off-bearer stopping the rollers or reversing them. It could have been prevented by the edgerman leaving the check board up. I did not know that the check board was down. It was the duty of the off-bearer and edgerman to protect me, as indicated above. On other days when I was removing slabs that had hung in the chains they had protected me by pushing other slabs from the roller system to the floor. When the assistant foreman employed me, he told me that if any slabs got tangled under the chains I was to straighten them out. I was the man in danger, and the off-bearer and edgerman had objects by them to protect me that is what they had them for, and there was nothing by me to protect myself.

"The rollers from the saw to the slab-chain were controlled by one lever, which was operated by the off-bearer. The rest of the rollers were controlled by one lever, which was located a little back of my position in tailing the edger. I had absolute and entire control of the slab chains. A rope hung down just over my head, and by pulling this rope the slab chains were raised above the surface of the roller system so as to engage whatever material was passing down the rollers and divert to the east to the slab saws. When the rope was released, the slab chains dropped back below the surface of the roller system. I do not know whether there was any way to stop the slab chains from running. If there was at that time, I didn't know it. The power was still operating on the slab chains at the time I attempted to remove the slab that had gotten caught under one of them. I could have gotten the slab out easier if the power had been cut off. I didn't ask any one to release the power from those chains before I attempted to take the slab out. The off-bearer could have stopped the slab rollers down to the slab chains, but I didn't ask him to do this. I simply gave him the signal that I was going over there; I simply motioned that I was going to take the slab out. The rollers of the section where the slab was caught could have been stopped then. I didn't expect to get hurt. I knew there was danger in going in there, or I would not have given the signal. The lever by the off-bearer controlled the rollers down to the slab chains; and the lever, about eight feet back of where I stood when tailing the edger, controlled them for the rest of the distance. No one had ever instructed me to use that lever, and I had never used it. The lever near the off-bearer controlled the rollers where I was hurt."

The appellee was asked this question: "Q. When a slab would hang that way, and you would go to release it, after you received the signals to release it and started to perform your duty in releasing it, what was the duty, if any, of the off-bearer and the edgerman? A. The duty of the off-bearer would be to stop those rollers, and also, if it had gone too close to me, to pull this lever and reverse them and bring the slab back, and the edgerman's duty would be to throw this board up to stop the plank and keep them from running in on me."

Further questions and answers were as follows:

"Q. If by chance it passed the board before they caught it, then how could it be stopped? A. It could not be stopped after it passed the board that way at all unless it had not got far enough but that the off-bearer could have used the lever and reversed it. Q. In case it did do that, how did you manage it? What was the rule? A. Before when I would get out slabs--the day before I got hurt--they had on other days when there were would be a slab hung under this first chain, when I went to get them out--if they were slabs, he pushed them out on the floor. There was several on the floor at the time this one hung that had been pushed off on the floor while I was getting one out--some three or four."

Appellee further testified that the boss showed him when he put him to work how to trip the slabs. He says: "He showed me to pull this rope and trip the slabs, and he said that good plank would come down, and that the off-bearer would show me; and this foot trip that sets over to the right, you use that like this, and he showed me to trip those planks to the trimmer; but this rope trip and foot trip that trips the plank to the trimmer is all he ever showed me how to handle or told me to have anything to do with--the trimmer trip and the slab trip."

Frank Sherrod testified substantially as follows: "I was running the edger where Johnson was hurt. I saw a slab get hung under one of the slab chains, and saw Johnson go over to get it out, but I didn't know whether he got it out or not. I didn't see any piece of timber go down the live rollers to where Johnson was while he was trying to get the slab out. I saw a slab start down the roller, but the off-bearer stopped the roller. If I had kept the check-board up, nothing could pass. I knew Johnson was trying to get the slab out."

The record shows the following:

"Q. Didn't you say if you had kept it up he would not have got hurt, and it was your duty to do that? A. Yes sir. Q. He was trying to...