Collison v. Curtner

• Decision Date: 08 December 1919
• Docket Number: (No. 36.)
• Citation: 216 S.W. 1059
• Parties: COLLISON v. CURTNER.
• Court: Arkansas Supreme Court

216 S.W. 1059

COLLISON v. CURTNER.

(No. 36.)

Supreme Court of Arkansas.

December 8, 1919.

Rehearing Denied January 12, 1920.

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

Actions by David Curtner, for himself and as administrator of his deceased son, Woodrow Curtner, against J. Collison. Causes consolidated for trial. Judgment for plaintiff, and defendant appeals. Affirmed.

Brundidge & Neelly, of Searcy, and Cul L. Pearce, of Bald Knob, for appellant.

Pace, Seawel & Davis, of Little Rock, and G. G. McKay, of Bald Knob, for appellee.

WOOD, J.

On the 3d of October, 1918, David Curtner, accompanied by his son, Woodrow Curtner, 5 years of age, drove a load of cotton to the gin of J. Collison, at Bald Knob, Ark. 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 instituted 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 consolidated for the trial.

Appellant first contends that at the time of the accident the gin was being operated by one N. B. Ledgerwood, under a lease from appellant which exempted him from liability in damages for the injuries of which the appellee complains. The lease was dated August 1, 1918, and was between J. Collison, the lessor, and N. B. Ledgerwood, the lessee, and recites in part as follows:

"For and in consideration of the payment of rentals hereinafter reserved, and the covenants herein, the lessor hereby grants, lets, and leases unto the lessee, his executor, administrator, and assigns, for a period of one (1) year from the date hereof, the following property: All the property, personal and real, now used and known as the `Collison Gin Plant,' including the realty upon which it is located, in the town of Bald Knob, Ark., and the use and the employment of all machinery, fixtures, implements, utensils, supplies on hand and all other things which now constitute or are a part of the said gin plant, or located upon the premises and which are considered a part of the said gin plant. * * * It being agreed that the lessor shall furnish all wood, coal, and other fuel, oil, belting, and other supplies, all repairs and new parts of machinery and other similar things necessary for the successful operation of the said plant, and shall receive from the lessee the sum of $4.25 for each and every bale of cotton ginned and turned out at the said plant, and shall also receive all profits and gain from the handling and sale of cotton seed coming from said gin. And the lessee shall pay said amount per bale, and concede all profits and gain from the handling and sale of cotton seed from said plant, and assumes and agrees to be responsible for, and assumes all liabilities for, wages, debts, damages, and otherwise, arising from or growing out of the operation of the said...