Edgar Lumber Co. v. Denton

• Decision Date: 27 November 1922
• Docket Number: 5
• Citation: 245 S.W. 177,156 Ark. 46
• Parties: EDGAR LUMBER COMPANY v. DENTON
• Court: Arkansas Supreme Court

245 S.W. 177

EDGAR LUMBER COMPANY v. DENTON

156 Ark. 46

No. 5

Supreme Court of Arkansas

November 27, 1922

Appeal from Union Circuit Court; C. W. Smith, Judge; reversed.

Judgment reversed and cause remanded.

T D. Wynne and J. K. Mahony, for appellant.

The court erred in not directing a verdict for the defendant. A servant assumes all the ordinary risks and dangers of his employment. Francis v. Arkadelphia Milling Co., 153 Ark. 236. A master is not bound to warn and instruct his servant as to dangers which are patent and obvious. 107 Ark. 528; 82 Ark. 534; 58 Ark. 217; 97 Ark. 486; 90 Ark. 387; 89 Ark. 50; 77 Ark. 367; 65 Ark. 98. Where the duty devolves upon the servant to make his working place safe, the master is not liable. 98 Ark. 145; 76 Ark. 69; 89 Ark. 50; 97 Ark. 486; 88 Ark. 292. It is error to give conflicting instructions. 83 Ark. 202; 110 Ark. 198. Instruction No. 4 was abstract and misleading. 96 Ark. 614. It was a question for the jury. 87 Ark. 321; 103 Ark. 414; 104 Ark. 236; 113 Ark. 160; 14 Ark. 520; 24 Ark. 540; 33 Ark 350; 89 Ark. 522; 14 Ark. 286; 93 Ark. 29; 14 R. C. L. 738. Instructions should not be based upon rejected testimony. 23 Ark. 101; 21 Ark. 271; 36 Ark. 641. The acts of a fellow servant must be measured by that of a reasonably prudent man under like circumstances. 103 Ark. 512.

Jno. E. Harris and Pat McNalley, for appellee.

There was no error in refusing to direct a verdict for the defendant. 93 Ark. 88. In directing a verdict for either party the rule is to take that view of the evidence that is most favorable to the party against whom the verdict was directed; and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. 91 Ark. 343; 120 Ark. 208; 103 Ark. 401; 101 Ark. 22; 96 Ark. 394. Instruction No. 3 requested by the plaintiff was a correct declaration of the law and should have been given. 105 Ark. 485; 152 Ark. 158. Instruction No. 4 was also correct and should have been given. 93 Ark. 88; 105 Ark. 485. Instruction No. 4 1/2 should have been given, as it clearly covers the question of assumed risk. 93 Ark. 88, 105 Ark 533. It is not the duty of trial courts in civil cases to give instructions upon any question unless the instructions covering the questions are tendered and requested to be given. Randall's Instructions to Juries, vol. 1, sec. 466, p. 465; 78 Ark. 355; 93 Ark. 757. This court will not reverse for an instruction in bad form only, unless the trial court is given an opportunity to correct it. 109 Ark. 231; 113 Ark. 1. And the court refused to do so. 110 Ark. 117; 115 Ark. 555; 192 S.W. 174; 116 Ark. 179; 93 Ark. 209; 105 Ark. 575. The failure to reduce the instructions as to writing was not, under the facts in this case, error. 194 S.W. 34.

OPINION

WOOD, J.

This is an action by the appellee against the appellant to recover damages for personal injuries. The appellee, in his complaint, alleged that he was in the employ of the appellant as a laborer at its lumber plant at Wesson, Arkansas; that he and a colaborer were directed to erect a wooden tramway upon which to convey lumber; that the tramway was about four feet high from the ground; that the appellee and his co-laborer were engaged in laying a floor on trestle work; that the floor was being constructed out of lumber of various lengths, ranging from two to eight feet; that a few minutes before noon the appellee left his co-laborer and other workmen at work upon the tramway; that in his absence other employees had placed a short board on the tramway floor and had negligently failed to secure and nail said board; that upon his return he assumed that no short boards had been used during his absence, and, without any warning given him of the unfastened board, the appellee, in the course of his duty and work, stepped upon the end of one of the short unsecured boards, and it rose quickly, throwing him to the ground and severely injuring him.

The appellant, in its answer, specifically denied the allegations of the complaint and set up the defense of contributory negligence and assumed risk on the part of the appellee. It also alleged that the injury was due to an accident. The appellee testified that he had been in the employ of the appellant for about a year as a common laborer; that at the time the injury occurred he was working with one Glenn, another employee, in building a new tram about four and a-half feet high. It was to be used for the purpose of conveying lumber from the mill to the yard. The dimensions of the flooring of the tram were 2 x 6 and 2 x 12. The tram was sixteen feet wide. They were using 30, 40 and 50-penny nails--good sized nails. Some of them had small heads and some between one-half and three quarters of an inch. When the appellee left for dinner, they had used the nails down to twelve or fifteen pounds, and he said he would bring some back so that they would not run out. Appellee left nails there in the buggy where they carried their tools and nails. The appellee was working under the directions of the straw-boss, one Griffin, and one Lacefield was foreman. They were instructed to build a flooring 16 feet wide, using lumber two inches thick and sixteen feet long when they started. They had used short pieces occasionally, a day or so when the appellant got hurt. The tram at that time was between 150 and 200 feet long. They were using the short boards at the direction of Griffin. The custom was to get off on the ground and line up one side of the tram, nail them, and saw the other end off. This was what the appellee was doing when he fell. The board that caused his injury was a 2x6" and between four and five feet long. Appellee had been working on the tram until about ten minutes before 12 o'clock, when he left Glenn, his co-worker, still working on the tram. Appellee returned in the afternoon at the usual time, and Glenn was not then working where the appellee left him. Appellee went back to work on the tram when Glenn was not present. Appellee described how his injury occurred as follows: "Beginning work on the tram, I got some nails, and I saw that the boards were over the line, so I lined them up. I got on the ground and lined up the boards, and this was what I was doing when I fell. Glenn was not present then. Griffin, Bass and John Meriwether were on the opposite side of the tram. They picked me up and set me on the edge of the tram, then carried me on a truck to the doctor's office, and then home." In his further testimony appellee described the nature of his injuries, which it is unnecessary, in the view we have of the record, to here set forth.

Will Glenn testified that he was working for the appellant the day the appellee was injured, and his testimony as to the nature of the work in which they were engaged was substantially the same as that of the appellee. Among other things he said: "The boards were placed on both sides of the place where Denton got hurt; after the boards were placed on the bench we would line it up by taking a line and line the boards on the front end and then push the boards in line; the long boards were not nailed, but we were nailing the splices all right; the decking boards were all long ones, but it lacked that much of being finished, so I spliced it; it (the board) was spliced on the third stringer; I cut it off and put it in there afterwards; it was about 4 1/2 feet long. The boards on both sides of the short piece were long boards and not nailed; the weight of the board was more than the weight of a man, and there was no danger in not nailing the long boards. I did not regard it as necessary to nail the long boards, but we did the short ones."

The witness further testified that when appellee left for dinner the witness remained. They had been nailing the splices all right. Appellee took the nail-box, and stated he would bring more nails back with him. Witness did not see whether there were any nails. Witness placed the spliced board in the tram and had it ready to line up after dinner, and thought about the appellee saying he would bring the nails after dinner, and left himself for dinner without nailing the decking on either side of the spliced board. They were loose. Anyone could have seen that the piece of board was a short one--that it was not a long board, but was spliced. It looked to witness like any one could have seen by walking over it. Witness judged that the board was six feet long and was resting on two sleepers. There were nine stringers to the bench, and it was spliced on the third stringer.

The above testimony was undisputed by the testimony of witnesses for the appellant. The straw-boss testified that they used full length lumber and some short length. "Usually we used full length lumber, but we were then using some short boards in building the tram."

The cause was sent to the jury, under instructions to which we will refer later. The verdict was in favor of the appellee. Judgment was entered in his favor, from which is this appeal.

1. The appellant asked the court to instruct the jury to return a verdict in its favor, and it urges the refusal of the court to so instruct the jury as its first ground for reversal.

Counsel for appellant contend that the undisputed evidence as above set forth shows that the appellee assumed the risk and that the court should have so declared as a matter of law, and cites the cases of Francis v. Arkadelphia Milling Co., 153 Ark. 236, 239 S.W. 1067; Buena Vista Veneer Co. v. Broadbent, 107 Ark. 528 155 S.W. 919; Chicago, R. I. & P. Ry. Co. v. Grubbs, 97 Ark. 486, 134 S.W. 636; St. Louis, I. M. & S. Ry. v. Goins, 90 Ark. 387, 119 S.W. 277. But these cases are readily differentiated from the case in hand...