Delight Lumber Company v. Henderson

• Decision Date: 04 November 1912
• Citation: 150 S.W. 868,105 Ark. 334
• Parties: DELIGHT LUMBER COMPANY v. HENDERSON
• Court: Arkansas Supreme Court

150 S.W. 868

105 Ark. 334

DELIGHT LUMBER COMPANY v. HENDERSON

Supreme Court of Arkansas

November 4, 1912

Appeal from Pike Circuit Court; W. P. Feazel, Special Judge affirmed.

Judgment affirmed.

T. D Wynne, for appellant.

1. The evidence is not sufficient to establish any causal relation between the alleged broken fifth-wheel and the injury complained of. The conclusion that the appellee, occupying the precarious position the evidence shows he was in balanced on the end of a log, his back toward the right-hand side of the road, his feet hanging down by the left side, fell over backwards on the right side of the wagon as the result of its left wheel striking a root at the same time the right wheel fell into a rut, is as consistent with the facts as the theory urged by appellee that the bolster dropped down into the broken fifth wheel and that without such happening the accident would not have occurred. Appellee, therefore has made out no case, and the jury should have been so instructed. 76 Ark. 346; 76 S.W. 502; 48 S.W. 439; 2 Labatt, Master & Servant, § 837.

2. Instruction 6, requested by appellant, is a correct declaration of law as applied to the facts in this case, and the court erred in refusing to give it. 46 Ark. 555; 74 Ark. 19; 79 Ark. 437; 90 Ark. 326.

Where a specific instruction clearly applying the law to the facts in a case is refused, such refusal is error, even though the law in a general way is covered by other instructions. 87 Ark. 323; 80 Ark. 455; 69 Ark. 134.

3. The court erred in refusing instruction 8, requested by appellant.

4. Instruction 11, requested by appellant, should have been given. The exercise of ordinary care only is required of an employer in providing instrumentalities that are reasonably safe for the purposes for which they are intended. 107 S.W. 661; 22 S.W. 1081; 124 N.Y. 655, 26 N.E. 1027; 1 Labatt, Master & Servant, § 26.

J. O. A. Bush, for appellee.

OPINION

MCCULLOCH, C. J.

Appellant is engaged in the sawmill business at Delight, Arkansas, and appellee, while engaged in the former's service, received personal injuries alleged to have been caused by negligence of the employer, and sues to recover compensation therefor. He recovered judgment below for damages in the sum of $ 1,250, and an appeal has been prosecuted to this court, numerous errors of the trial court being assigned.

Appellee, when injured, was driving a team of oxen and hauling logs from the woods to the skidway. He was riding on the wagon at the time, and the bolster tilted or dipped and threw him to the ground, one of the wheels striking him on the side of the face, inflicting severe injury. It is alleged that the tilting of the bolster resulted from the defective condition of the fifth wheel of the wagon, which permitted the bolster to drop down into the broken place and tilt. The evidence tends to show that a piece was broken out of the fifth wheel about a foot long, which left a gap between the bolster and hounds of the wagon, and that when the wagon was passing over uneven ground the bolster would drop down into the broken gap, sometimes causing the logs to roll off. Appellee had been working for appellant at times for several years, and on the day that he was injured he had been working there for two days, hauling logs. Appellant had a number of wagons for the use of log haulers. Some of them were eight-wheel wagons, equipped with fifth wheels, and some of them were four-wheel wagons. The fifth wheel is described as "a circular piece of iron, some thirty inches in diameter, situated beneath the rocking bolster half a foot, extending in a semicircle in front of the rocking bolster a half foot behind the bolster." Appellee had used both kinds of wagons, but during the period of his last service he had, before the time of his injury, only used a four-wheel wagon, and this particular wagon with the broken fifth wheel was furnished to him early in the morning of that day, and he was making his first trip when he received the injury. He testified that he had not used this wagon before, and did not know of its defective condition until he received the injury. The testimony tended to show that a piece eight or ten inches long was broken out of the fifth wheel. It was a defect which was readily discernible to any one who looked. In other words, it was a patent defect. Appellee testified that he was driving along the road, when the wagon gave a tilt, the wheel of the wagon struck a small root, and the bolster dropped down and tilted so as to throw him to the ground.

It is earnestly insisted, in the first place, that the evidence does not sustain the verdict, in that it does not show that the tilting of the bolster was caused by the defect. A careful consideration of the evidence convinces us that this is a question which was properly left to the jury, and that there was sufficient evidence to justify the verdict. It is true, appellee testified that be did not know what caused the bolster to tilt over, and, so far as that statement is concerned, it may just as well be inferred that the tilting of the bolster was caused by the wheel striking the root as it was caused by the defect in the fifth wheel. But this omission is supplied by the positive statement of appellee that the bolster dropped down, and, considering this in the light of the testimony of other witnesses, the inference could properly be drawn that the tilting of the bolster was caused by its dropping down into the broken gap, and not by the wheel striking the root. The jury could, from the evidence, have found that either of the two things mentioned caused the plaintiff to be thrown from the wagon; but, if the statement of appellee be accepted as true, that, together with the other testimony, afforded substantial ground for the inference that it was caused by the defect in the fifth-wheel, and that it did not result merely on account of the wheel running over a root.

The state of the testimony also warranted the submission to the jury of the question of appellant's negligence in...