Collison v. Curtner

Decision Date08 December 1919
Docket Number36
Citation216 S.W. 1059,141 Ark. 122
PartiesCOLLISON v. CURTNER
CourtArkansas Supreme Court

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

Judgment affirmed.

Brundidge & Neelly and Cul L. Pearce for appellant.

1. Appellant's request for a peremptory instruction should have been given, as the undisputed testimony shows that at the time of the accident appellant had leased the gin to Ledgerwood, who was operating the same as an independent contractor, and appellant had no control or management of same, nor did he hire or discharge the hands or give them any directions. 77 Ark. 553; 54 Id. 424; 55 Id 510; Elliott on Railroads, art. 1063, p. 1586; Ann. Cases 1916 D, 220; Ann. Cases, 1918 C, 624; 14 R. C. L. 473.

2. The relation between Collison and Ledgerwood is wholly in writing and the construction of same was for the court and not for the jury.

3. The court erred in giving instruction No. 1 for plaintiff. It was abstract and the testimony showed that defendant had leased the property and had no control or management of the same and it left out the question altogether whether or not under the contract Ledgerwood was an independent contractor. Supra.

4. Instruction No. 5 is open to the same objection.

5. No 6 is erroneous because the jury are permitted to leave out of consideration the question whether plaintiff, David Curtner, who had control and charge of the son and whose negligence would be imputed to plaintiff, was guilty of contributory negligence.

6. No. 7 is clearly erroneous, as it leaves out altogether the question of Ledgerwood being an independent contractor. Next it tells the jury that under the lease defendant agreed to furnish all repairs on the gin, when the testimony shows that he was to furnish such repairs as Ledgerwood might find necessary and make demand for suitable material to repair same, and that defendant had nothing to do with putting the machinery in condition and repairs prior to the commencement of operations of same for the season of 1918.

7. Instruction No. 9 is abstract, as there is no proof of the value of the child's services during minority.

8. No. 10 was specifically objected to because it told the jury that if they found for plaintiff under the second count they were to assess such damages as would compensate for the pain and suffering endured by the son, but there were no instructions given as to what fact they should find under the law before they could return a verdict for plaintiff under the second count.

9. The court erred in refusing No. 11 for defendant. It was a proper declaration of law on the question of independent contractor. For the same reason No. 12 should have been given.

10. No. 13 should have been given for defendant to cover the theory of defendant, as No. 7 for plaintiff had been given.

11. The court erred in permitting the witnesses, H. C. Pearrow and B. F. Mitchell, to testify as to the custom of people being around the engine and boiler room of the gin in 1916 and 1917, as well as 1918, as different parties were then operating the gin.

12. It was error to admit the testimony of J. W. Graham as to the condition of the plug and the conversation with defendant Collison after the accident and after the repairs of the boiler.

13. The court erred in permitting plaintiff to prove by P. J. Donohue the condition of the boiler after the accident some fifteen days. 108 Ark. 489; 105 Id. 205; 151 S.W. 259; 70 Ark. 179; 78 Id. 148; 79 Id. 393; 89 Id. 556; 82 Id. 561; 48 Id. 460; 78 Id. 147. It was also error to admit the testimony of N. Miller, Ben Harrison and H. C. Pearrow as to the custom of customers going into the engine room for a drink of water. 108 Ark. 440; 48 Id. 177; 77 Id. 495.

Pace, Seawel & Davis and G. G. McKay, for appellee.

1. The request for a peremptory instruction was properly refused. A landlord in the absence of an express agreement is not required to repair the premises and is not responsible for its defective condition. 24 Cyc. 1128; 29 Id. 477; 18 A. & E. Enc. L. (2 Ed.), 241-2. See also 121 Ark. 253; 110, Id. 49. If the premises are dangerous at the time of the execution of the lease, the landlord is liable. 18 A. & E. Enc. L. (2 Ed.), 242.

2. All the testimony shows that it was the duty of appellant to repair the machinery and so does the lease. The boiler was defective and unsafe when the lease was made for 1918. Defendant and his child were lawfully on the premises and not trespassers but they were there by, at least, implied invitation. 29 Cyc. 455.

3. Instruction No. 1 for appellee was more favorable to appellant than the law warranted. There was ample testimony that the boiler threads were defective. The question as to an independent contractor could not be presented in this instruction and was foreign to the issues. Either appellant was the operator of the gin at the time of the accident or he was responsible under its terms, as the boiler was defective and dangerous when the lease was executed.

4. The objections against No. 5 can not be considered, as they are practically the same as those to No. 1, and the evidence fails to establish negligence at law or in fact on the part of appellee. If the boiler was defective at the time of the lease appellant was liable and no contributory negligence is shown. This disposes of the objections to No. 6.

5. Instruction No. 7 for appellee is also too favorable to appellant. He was liable without regard to his agreement to furnish repairs. He was required to keep his machinery in a reasonably safe condition during the season of 1918.

6. Objections to Nos. 9 and 10 are without merit. The son was bright and healthy and did chores around the premises and elsewhere. The evidence justified them. Instruction No. 5 covers the question beyond controversy.

7. Nos. 11 and 13 for appellant were properly refused; they ignore the provisions of the lease requiring appellant to repair the machinery and omits the evidence that the boiler was dangerous and defective at the time of the alleged lease.

8. The evidence as to the custom of persons on the premises was competent. Appellee was there on business connected with the ginning of his cotton. The custom was well known and notorious and there was no error in admitting the evidence of Graham as to the condition of the boiler.

9. The jury found the issues for appellee under the law, and the testimony sustains it and the verdict is very small.

OPINION

WOOD, J.

On the 3rd of October, 1918, David Curtner, accompanied by his son, Woodrow Curtner, five years of age, drove a load of cotton to the gin of J. Collison at Bald Knob, Arkansas. While waiting to have the cotton ginned, Curtner and his son went into the boiler room of the gin, and while there a plug at the bottom of the boiler was blown out and Curtner and his son were scalded. The son died from the injuries received and David Curtner, in a separate action, in his own right, and as administrator of the estate of his son, instituted another action against the appellant to recover damages for the injury and death of the son.

The grounds of negligence set forth in the complaints are that Collison negligently and carelessly permitted the boiler to become and remain insecure and unsafe, in that the plug used by him to stop the blowpipe at the bottom of the boiler was too large for the opening, and when screwed into the opening only a few threads would catch; that the threads in the opening of the boiler were worn, some of them being entirely gone, making the plug insecure in the opening; that the plug blew out and permitted the steam and hot water to escape and burn the plaintiff below, appellee here, rendering him a cripple for life; that Collison at the time of and before the happening of the accident knew of, or in the exercise of ordinary care could have known of, the defective condition of the boiler and that such condition was wholly unknown to the appellee. The appellee then set forth minutely the nature of the injuries received.

The appellee alleged that he had suffered and that he will continue to suffer for the remainder of his life great pain of body and anguish of mind as a result of the injuries. That on account of his own personal injuries he had been damaged in the sum of $ 30,000, for which he asked judgment.

In the case of the appellee as administrator of the estate of his son he alleged the same grounds of negligence and set up that his son was injured by reason thereof and suffered great agony and finally died as the result of the negligence alleged.

He averred that the services of his minor son were worth to him the sum of $ 5,000 and that he should recover for the benefit of the estate in the sum of $ 15,000. He, therefore, prayed for judgment in the sum of $ 20,000.

In his answer the defendant, appellant here, denied all the material allegations of the complaint and set up as an affirmative defense that the gin where the accident happened had been rented by the appellant to one N. B. Ledgerwood, who at the time was in the exclusive possession, control, management, and operation of the same; that if the appellee and his son were injured their injuries were caused by the appellee's going into the boiler room and taking his son without the invitation or permission of the appellant; that appellee knew or should have known that it was a dangerous place and was a trespasser, and was therefore guilty of contributory negligence.

The allegations of the answer in the case of the appellee as administrator of the estate of his son were substantially the same. In that case the appellant charged that the appellee was guilty of contributory negligence in taking his son into a dangerous place and allowing him to remain there.

The causes were...

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