Doniphan Lumber Co. v. Henderson

• Decision Date: 10 July 1911
• Citation: 139 S.W. 649,100 Ark. 53
• Parties: DONIPHAN LUMBER COMPANY v. HENDERSON
• Court: Arkansas Supreme Court

139 S.W. 649

100 Ark. 53

DONIPHAN LUMBER COMPANY v. HENDERSON

Supreme Court of Arkansas

July 10, 1911

Appeal from Cleburne Circuit Court; Brice B. Hudgins, Judge affirmed.

STATEMENT BY THE COURT.

This is the second hearing of this case on appeal. The first appeal was from the judgment sustaining a general demurrer to the complaint, and is reported in 94 Ark. 370 (Henderson v Doniphan Lbr. Co.).

The suit was brought by the administratrix for damages for the wrongful death of her husband and intestate, alleged to have been caused by the negligence of the lumber company. The negligence complained of was that the lumber company cut and put into Little Red River loose saw logs, and negligently allowed them to accumulate in jams and float down the river unattended and without warning to others rightfully using the river, and that upon a sudden rise the logs came down in great bodies or jams, striking the ferry boat upon which Vinson Henderson, the intestate, was crossing the river, and sinking it, thereby drowning him.

The answer admitted that the logs were cut and put in the river for the purpose of being floated to the mill; denied that there was any negligence in putting them into the stream that it negligently permitted them to accumulate in jams, and that said Vinson Henderson lost his life by reason of any negligent act upon its part; and pleaded contributory negligence of the deceased in bar of the action.

The testimony shows that it was the custom and practice of the company to have its logs cut and thrown loose into the Little Red River for 50 miles above the ferry where the injury occurred; that these logs, so placed in the river, would be brought down upon its rising to a sufficient height to carry them, floating along unattended except by drivers along the shore, whose duty it was to keep them from lodging against the bank, and caught in a boom near the mill below the ferry that the logs were put in for several months at a time before a rise of sufficient height would come to carry them out that during some of the rises they would float down the river and sometimes lodge and jam in large numbers on shoals or "towheads," and remain until a larger or higher rise would come and take them out.

The injury occurred at Faulkner's ferry on the 29th day of November, 1908. William Faulkner was the ferryman who attempted to put the deceased across in his boat. He had been operating the ferry at this place for 13 years, and lived about 200 yards from the bank of the river. He had been away during this day, and his son Elmer put the deceased and his daughter across the river, and, upon the ferryman's return late in the afternoon, he and his wife and two little boys walked down to look at the river and see about the boat. The river had been rising since the day before, and had risen six feet "plumb water" to this time. While he was there, Henderson signaled from the south bank to be put across. Faulkner took his little son Clyde, and ran the boat to the other side, and took Henderson and his team on. The boat is operated across the river on a cable. There is a pulley or wheel that runs the cable with a chain about three and one-half feet in length, which is attached to the staple about the middle of the boat to hold it, and the ferryman and his assistants pull on the cable to move it across. After taking the team on, they swung the boat 'round, and the current was so strong it tore the cable out of their hands. The ferryman then took an oar and pulled to the bank and back up to the cable. He told the deceased that it was dangerous to cross and tried to prevail upon him to go with him to his son's or the house of another person on that side of the river and stay all night, and said he would put him across in the morning. He told him that he was not afraid of the river, but that he was sick and preferred to wait for his son Elmer. To this Henderson replied that he must get home that night; that there was no real danger, and that he would help him operate the boat. They started again, and he told Henderson to attach the chain in the pulley or ring to the staple. This Henderson tried to do, and he said, "I cannot hook it. I can hook the other." Faulkner said: "Don't do that," but he hooked it. "He hooked it in the chain that I tied the boat to the bank with."

The ferryman described the occurrence as follows: "We were all three pulling, and all three of us had hold of the cable on the upper end. Mr. Henderson was in front, I think, the boy next, and I was behind. We were out something near half way on the river when the jam struck us. There is a bend in the river, and you cannot see up the river until you get about middle ways. It struck with such force that as soon as it struck it pushed us away from the cable, but we had the boat chained to the cable and it went the length of the chain. As soon as it did that, the jam of logs upset the boat on the edge, and there were so many logs in the jam that it could not turn over. I went to the back end and got my son. Mr. Henderson got on his mare. The logs were coming in such a jam that they would have to tear loose against the edge here, and this chain was all that was holding the jam. Henderson came to my back and clinched me, and I told him to turn loose and catch hold of the banister of the boat. I told him the boat was going to turn over, and it might come with a jerk. There was such a press of logs that it eased over, and I said, "Climb up on them." We would have been to the bank in a few minutes, but the logs came in such a mass it weighted it right down and pushed us off the boat. We couldn't stay there. We all three grabbed the same two logs, and we were all three between the same two logs, and the jam pushed us on, and we went right on, and went two miles until we struck the jam on Briar below. The current took us right to it, and he (Henderson) went down. I never could see him any more. He was drowned under that jam of logs. I don't know how many logs were in that jam. They were from one brush to the other, a solid jam from bank to bank; the logs came there until the jam got so far I couldn't hear them hit. The jam we landed on was on Briar below us. The logs that turned the boat over were passing us all the time. We couldn't get out from them. The water was cold and chilled me. When I got to the bank, I could not walk. While we were in the water, Henderson said he was getting numb. He was a good Christian man and prosperous.

"I am acquainted with the purposes for which Little Red River is used, and I have been for several years. It was customary to float logs in rafts until the Doniphan people put them in loose. I knew before the accident of that custom, and that a rise would send a great quantity of logs down the river. The Doniphan Lumber Company had been using the river to float logs down loose for two years or more prior to the accident. I was aware of the fact that the logs would come down if there was a sudden rise. I knew they had been putting in logs all season. I knew that they had logs up there, but I did not know there was a head rise going to bring them all at once. The head rise comes altogether. There was a twenty-foot rise. I don't know how long it took to rise that twenty-foot rise. It was still rising next morning. The river did not rise all at once twelve or fourteen feet.

"The Doniphan Lumber Company had a camping crew at my place that morning. They had been there a day or two rolling in logs. I knew they came from the upper river above the ferry. They were there just before the accident, rolling logs into the river. I knew that was their business. They were rolling in logs that had caught on the bushes, so that the rise would take them off. I do not know whether any logs had been running that day or not. There was one once in a while when I was coming. None struck the boat when we were going after Henderson. From my experience I knew the logs put in the river above me would come down on the first big rise. In the spring of 1908 my ferry stood there three and one-half days right in planting time on account of these logs running so thick I could not ferry, and the year before I lost three and one-half days."

Answering the question, "When Mr. Henderson came down there and wanted to cross the river, did you try to get him to go back there and stay all night with Mr. Albert Stanley and not undertake to cross that night, and didn't you tell him it was dangerous to do it?" He said:

"Gentlemen of the jury, I will tell you just what I said to him. After we went over, and we started, and the boat jerked loose; I was sick; I wasn't well; I said: 'Henderson, let's go to John's or Sarah Jane's, one, and stay until morning.' He said, 'I have to get home.' I said: 'Wait until Elmer comes home to help me.' He said: 'We just had a bad miscue in turning. I can pull it across myself.' I told him: 'Let's go back to Elgin Graham's or John Staley's,' after the boat got loose the first time. John Staley lived 2 1/2 miles from the river. The river was not dangerous to cross on account of being up."

The testimony showed that Pangburn, ferryman, quit operating his boat above the Faulkner ferry about noon, and that the ferryman below the Faulkner ferry three miles quit operating his boat on account of the rising river and floating logs about 3 o'clock. There was some testimony tending to show that the logs were running freely along at noon when the camping crew at this ferry were sent word to go on down to the boom to catch the logs; that the river was almost half full of logs at that time. The ferryman testified, however that there was only an occasional log coming down when they crossed to get Mr. Henderson, and his little son, that not more than two or three at a time were...