Cleaver v. Bert Johnson Orchards, Inc.

• Citation: 298 S.W. 1016,175 Ark. 223
• Decision Date: 31 October 1927
• Docket Number: 280
• Parties: CLEAVER v. BERT JOHNSON ORCHARDS, INC
• Court: Supreme Court of Arkansas

298 S.W. 1016

175 Ark. 223

CLEAVER v. BERT JOHNSON ORCHARDS, INC

No. 280

Supreme Court of Arkansas

October 31, 1927

Appeal from Pike Circuit Court; J. S. Lake, Special Judge; affirmed.

STATEMENT BY THE COURT.

Appellant brought this suit to recover damages for an injury to his eye, destroying the sight of it, alleged to have been caused by the negligence of the defendant in furnishing him with a defective tool with which to work.

The complaint alleges: "* * * that said negligence of appellee consisted in appellee's negligently furnishing appellant with which to do said work a hoe that was improperly tempered, making it too hard and brittle, so that when said hoe struck a rock while appellant was using it in said work, a piece of metal broke from said hoe, by reason of said improper tempering, and struck appellant in the eye and injured him; that said condition of said hoe was known to appellee, or by the exercise of ordinary care could have been known to it, before the occurrence of said injury * * *."

Defendant denied any negligence, denied having directed the appellant to select any particular hoe or having selected one for him and that it knew of any defective condition of the hoe, or failed to exercise ordinary care to discover any such defect denied that the injury occurred from a piece of steel splintering off the hoe and striking plaintiff in the eye, as alleged, and all other allegations of the complaint.

It appears from the testimony that appellant was working in the Bert Johnson Orchards, the largest peach orchards in the world, the surface of which is undulating, and much of it contains gravel and rocks up to large bowlder size. That appellant, a farmer, had been working in the orchards from April 13 to June 16, 1926, the day of the injury. He had been cutting bushes with pruning shears until about 10:30 that morning, at which time he began hoeing or cutting the weeds from around the trees. He stated that the foreman told him to cut the weeds, and that there were two hoes newly sharpened lying on the ground inside appellee's blacksmith shop and the foreman said, "Take one of those hoes there," and he did not observe any defect in the hoes and picked up the one nearest to him, which was about 4 inches wide and had a hole in the top for the handle. The hoe was known as a cane hoe, and it was about half worn out, and when new was about 7 inches long. It was freshly sharpened, and had not been used since being sharpened. The hoes were sharpened by blacksmiths employed by appellee. This was the regular place where hoes were sharpened on that work. Describing the injury, he said he was hoeing around the third peach tree, the ground was loose, freshly plowed, and had some gravel where he hoed the first two trees. There was a skip where there was no tree, and the third was down the hill, where it was rocky. While hoeing this third tree he struck a rock, and a piece of steel broke off the hoe and struck him in the right eye. "It produced a stinging, sickening sensation when it first struck me," and blinded the eye at once, and that he had never been able to see out of it since the injury. He went home, and in the afternoon to see a doctor at Nashville, who discovered something in the eye, but did not try to remove it. The next day, at Texarkana, Dr. Fuller removed the sliver from his eye with a magnet. The doctor held the magnet up and said, "There is the steel." Appellant was considerably blinded, and could not say positively he saw the steel, but saw the magnet and felt the object come out of his eye, when it was attracted and drawn by the magnet. He went home after several days, and had to return again to Texarkana for treatment by Dr. Fuller. Had suffered much pain from the injury and the loss of sight from the injured eye, from which he still suffered at the time of the trial, and his other eye had been weakened also by the injury; that he was not able to do more than about one-fourth of a farm hand's work since the injury. On cross-examination he stated he was 46 years old; could read a little with strong glasses; knew the make of hoe the company furnished its men; had used them some in 1920, but had not used such a hoe since until the day of the injury, but had used hoes of similar make and style. Made a casual examination of the hoe, when he picked it up, to see if it was sharp. It appeared to be all right. The hoes were lying on the ground in the shop, and he was at the blacksmith shop every day, and knew where the hoes were kept. Was just finishing cutting the weeds around the third tree "when the hoe struck a rock, and a piece slivered off and struck me in the eye." He did not examine the hoe to see whether it was gapped, and carried it to the turn-row or street, put it down on the ground, and had never seen it since.

Harold Stewart, an 11-year-old boy, hoeing peach trees on the opposite row, about 15 feet from the appellant, stated that he saw appellant when he got hurt; that he staggered when he was struck, and came up, had his hand over his eye, and asked if he could see anything in his eye. Witness saw something about the center of the eye-ball, but could not tell whether it was a piece of steel or rock. He appeared to be suffering, and he went with him to Kimball's house. Said appellant was using an old grubbing hoe that appeared to have been sharpened that morning. Said on cross- examination that he had been hoeing along there all morning with appellant; that it was a sort of a rocky place; that witness had hoed about 25 or 30 trees with a hoe Pollock had brought out and used awhile, and appellant had been hoeing about the same length of time, with a hoe like witness was using; they worked just alike, and witness' hoe came from the shop. Did not know what became of the hoe appellant was using; worked out there after appellant got hurt, and left his hoe out there. Appellant carried his hoe up to the road. Witness also stated there was a number of old plow points and things like that around the trees, where they had been changed, but he did not see any around the tree where appellant got hurt, but did not look for any. There were rocks there.

George Boggs testified that he was a blacksmith; had been a blacksmith about 54 years, 30 of which had been in Arkansas, and had worked 17 months as a smith near appellee's orchards, and had sharpened hoes in their orchards. That a blacksmith, in sharpening a hoe to be used in rocky ground, should temper it so that it would be tough enough not to break or sliver when used in the rocks. "If the blacksmith will use proper skill he can so sharpen the hoe and so temper it in sharpening it that it will not chip in using it in the rocks." That the natural result of tempering a hoe too highly is to make it brittle and liable to chip or break. That the ordinary farmer, not skilled as a blacksmith, could not tell by looking at a hoe whether or not it was too highly tempered. Witness did not claim to be a perfect blacksmith. Admitted that he made mistakes, but that it was very rare that he made a mistake in tempering a piece of steel. Said the user of the hoe can tell as soon as he commences to work with it, whether it is properly tempered and sharpened.

J. R. Sevier stated that he had been a blacksmith 40 years, and had sharpened hoes ever since he began the business. That if a hoe was properly tempered it would not chip or sliver. Stated how the tempering was done, and the changing color of the metal after heating until the completion of the tempering. That one without experience as a blacksmith could not tell about the temper of the hoe by looking at it.

Several doctors testified about the injury to the eye and the result of it. One of them stated that an operation had been performed on the eye for a cataract, would say a traumatic cataract. Usual cause of cataract is old age.

Carl Prior testified that he was foreman on division 1 of Bert Johnson Orchards; that he had given appellant directions to hoe the young trees that day, about 15 minutes before 7 that morning. The instructions were given before the blacksmith shop, which was maintained in connection with division 1 of the orchard; that each division of the orchard has a shop. Hoes are kept in...