Darling v. Burnett

• Decision Date: 14 November 1910
• Citation: 132 S.W. 212,96 Ark. 461
• Parties: DARLING v. BURNETT
• Court: Arkansas Supreme Court

132 S.W. 212

96 Ark. 461

DARLING v. BURNETT

Supreme Court of Arkansas

November 14, 1910

Appeal from Nevada Circuit Court; Jacob M. Carter, Judge; reversed.

STATEMENT BY THE COURT.

Horatio Burnett, a minor, by his father and next friend, John C Burnett, brought this suit against H. H. Darling and C. P Darling, partners under their firm name of Darling Brothers to recover damages for injuries sustained by him while employed at the sawmill of the defendants.

Evidence was adduced by him to prove the following facts: On the 16th day of March, 1909, he went to the sawmill of the defendants to secure employment. At that time he was 19 years old. He had worked around the mill before that, trucking, stacking and off-bearing lumber. He was employed, and was given the job of running the "bull-wheel," which was a machine used for drawing logs up the chute to the saw. When large logs were being drawn up, it frequently happened that the belt became loose. Burnett says that he had been directed by C. C. Darling to tighten the belt by holding it down with a pinch bar; and that he did not know the dangers attending the work. While so engaged, he sustained the injuries for which this action was brought. There was no idler on the belt. An idler is a pulley that runs on top of the belt to hold it down. While operating the bull-wheel, Burnett stood on a plank platform, which was about five feet above the ground. He had to go about six feet from this platform to the place where he held the belt down with the pinch bar. He walked on planks and over the line shaft to get there. The shaft was about two feet from the ground.

At the time Burnett was injured he had been engaged in holding down the belt with a pinch bar; and while doing this he stood across the shaft with each foot on a sill. There was a collar on the shaft which was fastened to it with a set-screw. When the log had been pulled up, Burnett started to return to his platform at the bull-wheel. Burnett said:

"I stood on sills when I was using the pinch bar; they were oily; about as oily as anything gets to be; it run out of the boxes onto the sills. I had pulled the log up before I was hurt, and went to come back out there, and the set-screw caught my pants leg right at the bottom at the side of the left foot, and wound my pants' leg up. The pulley kept pulling, and got up as far as it could, and got me down, and the belt commenced slipping, and the pulley stopped."

It is not claimed that the verdict is excessive, and for that reason it is not necessary to abstract the testimony showing the character and extent of Burnett's injuries.

Evidence was adduced by the defendants to prove that they had told Burnett and their other employees not to go in behind the line shaft and hold down the belt; that such action was dangerous and would cause them to get hurt "that, if the belt would not pull the logs, to stop the mill, cut the belt and replace it so that it would pull the logs."

There was a verdict and judgment for plaintiff in the sum of $ 500; and defendants have duly prosecuted an appeal to this court.

Judgment reversed and cause remanded for new trial.

McRae & Tompkins and D. L. McRae, for appellant.

1. Appellee's own testimony shows that he was apprised of the danger incident to the work and appreciated the same. Where a servant has such knowledge and appreciation, there is no duty resting upon the master to warn and instruct as to such dangers. 124 S.W. 524; 56 Ark. 232-8; 6 L. R. A. 733-5.

2. The court should have given the fourth instruction requested by appellant without modification. 51 Ark. 469; 58 Ark. 206; 48 Ark. 348; 77 Ark. 405; 84 Ark. 377; 85 Ark. 237; 88 Ark. 20; 126 S.W. 1005; Id. 322; 1 Labatt, Master & Servant, § 363; 26 Cyc. 1245.

Hamby & Haynie, for appellee.

Both as to patent as well as to latent dangers, it is the master's duty to warn and instruct young and inexperienced employees. Knowledge of the danger does not imply appreciation of the same. 90 Ark. 473. The evidence does not establish that appellee appreciated the danger.

OPINION

HART, J., (after stating the facts).

Counsel for defendants assign as error the action of the court in amending and giving to the jury as amended instruction No. 4 asked by them. The instruction, as amended or modified, is as follows:

"4. You are told that the servant is bound to obey the reasonable commands of the master, and if, while disobeying these commands, he is injured, the master is not liable. So, in this case, if you find from the evidence that the plaintiff had been instructed by the defendants not to go behind the line shaft, or had been told not to hold the belt down with the bar, and that in violation of these instructions, and with full appreciation of the danger, he did go behind the shaft and hold the belt with the bar, and that he would not have been injured if he had not done so, your verdict should be for the defendant."

The amendment or modification consisted in inserting the words in italics, to-wit: "and with full appreciation of the danger." The instruction should have...