F. Kiech Manufacturing Company v. Hopkins

• Decision Date: 16 June 1913
• Citation: 158 S.W. 981,108 Ark. 578
• Parties: F. KIECH MANUFACTURING COMPANY v. HOPKINS
• Court: Arkansas Supreme Court

158 S.W. 981

108 Ark. 578

F. KIECH MANUFACTURING COMPANY v. HOPKINS

Supreme Court of Arkansas

June 16, 1913

[Copyrighted Material Omitted]

Appeal from Craighead Circuit Court, Jonesboro District; Frank G Smith, Judge; affirmed.

STATEMENT BY THE COURT.

On the 19th day of September, 1911, James A. Hopkins was in the employ of appellant, as carriage rider, at its stave mill in Craighead County, Arkansas. He was killed while in the discharge of his duty, and the appellee, his administratrix instituted this suit against appellant for damages, alleging among other things:

That it was the duty of Hopkins to place stave bolts upon the carriage and firmly secure the same thereon, and that it was the duty of another employee, the sawyer, to operate a lever, by the operation of which, the carriage upon which Hopkins was performing his duties, would move forward and backward. When the carriage was moved forward, the bolt would come in contact with the saw and be sawed in two pieces and after the carriage passed the saw it was the duty of the sawyer to stop the carriage and keep it stationary, until another employee removed the parts of the bolts; that on the occasion of the injury to Hopkins the sawyer stopped the carriage after it passed the saw, but instead of permitting it to remain still until the other employee had removed the bolt and while the bolt was upon the carriage, the sawyer carelessly moved the lever, so as to cause the carriage to run backwards; that thereby the bolt was again brought in contact with the saw, which was running at great speed; that the saw threw the bolt with great force against Hopkins, killing him.

The appellant answered, admitting that it was the duty of Hopkins to place the bolts upon the carriage and to firmly secure and fasten them with dogs, and alleged that it was his further duty to turn a ratchet wheel to move the bolt in front of a circular saw. It alleged that on the occasion when Hopkins was killed the bolt had been sawed in two pieces and that Hopkins released the dogs and failed to turn the ratchet wheel so as to remove the bolt away from contact with the saw, and thereby the bolt dropped in between the carriage and saw and against the saw, and that the speed with which the saw was running caused the bolt to fly back and strike the deceased, resulting in the injury complained of.

The answer denied the allegation of negligence set up in the complaint, and alleged that the death of Hopkins resulted from his own negligence. There was exhibited in the evidence a model purporting to show the machinery about which Hopkins was working when he was injured. The stave bolt that was being sawed at the time was also in evidence. The bolt was about thirty-two (32) inches long. The saw was about sixty inches in diameter. It was provided with a divider at the heel or the rear end, six (6) inches wide, thirteen (13) or fourteen (14) inches high, one-quarter (1/4) of an inch thick and about one and three-quarters (1 3/4) inches from the heel of the saw.

Appellant contended, and introduced proof, tending to show that Hopkins failed to securely fasten the dogs and after the bolt had struck the saw and had sawed a kerf of a few inches, the sawyer discovered that the bolt was not securely fastened that he then ran the carriage back and changed the ends of the bolt; that Hopkins then again, by the use of the lever, automatically fastened the dogs into the bolt; that the sawyer then by the use of the lever, sawed the bolt in two; that before the front end of the bolt reached the rear end of the saw, Hopkins released the dogs from the bolt without removing the bolt back from the saw by the use of the ratchet wheel under his control, and that the saw thus came in contact with the bolt and the friction of the rapidly-revolving saw with the bolt threw it back against Hopkins, killing him. Several witnesses testified on behalf of appellant that the first dogging of the bolt was defective, and that after sawing the kerf in one end of the bolt, the defect was discovered and the carriage was run back and the bolt changed ends, when it was sawed through. Appellant contends that this testimony was undisputed and that it shows that the gash or kerf of a few inches in the bolt head was made by the front of the saw. One witness on behalf of the appellee testified, in part, as follows:

Q. After this bolt was dogged and run up to the saw, did anything occur--did they stop or back away from the saw or change ends with it, or anything of that kind?

A. No, sir; not that I saw.

This witness further testified:

"I was standing three or four feet from Mr. Sullivan (sawyer). I was helping because they were in a hurry and wanted to get certain work done before quitting time. I had no other duty to perform than to lay a block from the skidway over to the carriage. There was nothing to attract my attention or hinder me from seeing Sullivan change ends with the block if he had done it. I did not see him do it."

Appellant further contends that the physical facts show that the gash or saw kerf of a few inches in the head of the block must have been made by the front of the saw, and that an examination of this kerf shows that it was in a straight line, paralleling the surface of the bolt. There was testimony tending to show that the saw was running at the rate of eight thousand, one hundred (8,100) feet per minute, and appellant contends that it would have been impossible for the heel of the saw, running at that rate of speed, to have cut a gash or kerf on a straight line, paralleling the surface of the bolt, and several witnesses testified on behalf of appellant to this effect. One witness stated that when the bolt was run back on the carriage it would strike the divider and either break it or throw the carriage off of the track. It could get in at the back end of the saw by getting almost across the saw kerf. Then the saw would throw the bolt up. It would not cut a saw kerf like the one in the bolt, but would tear off a corner of the bolt. Another witness said that the cut in the ragged end of the bolt could not have been made with the heel by it coming back toward it with the divider there. Nothing could have held it down to the saw to make that kerf and then it could not have been parallel with the length of the bolt as it is. If it came back in the back end of the saw, the kerf would have been reversed. The kerf could not have been made on the line like it is. It would not have been parallel and straight as this kerf is. One of these witnesses on cross examination stated that "he was at Nettleton when the court, jury and attorneys were there and the measurements were being made and the saw rig run. The same bolt was in evidence over there. While the saw was standing still he saw some one, in the presence of the jurors, take hold of the bolt and put it down into the carriage and shove the back end of it into the gash. The saw teeth came into the bottom. It came nearly across the carriage. It did not set up to the saw." Witness saw the experiment made. He was foreman at the mill.

The record shows that the jurors were permitted to saw off a portion of the ragged end of the bolt, revealing the marks of the saw on the saw kerf.

On behalf of the appellee, a witness testified that "he saw the bolt that struck Hopkins, when it went up to the saw. He saw the kerf after the saw went through the bolt, cutting it into two pieces." He stated that "the bolt went past the saw that far" (indicating). Witness was asked what became of the bolt, and stated that "he saw the off-bearer reach for it, but did not know whether he took hold of it or not. He did not see the bolt when it came back and hit Mr. Hopkins." Witness said "he did not know how far the bolt went back." He said "it passed the saw or the divider. He did not know whether it was undogged or not. Didn't know whether it passed the divider or not."

On the other hand, a witness on behalf of the appellant, who was present, testified that "the injury resulted by reason of Hopkins releasing the bolt with his lever. It dropped down between the saw and flew back and hit him. The end of the bolt got within about eight inches of the rear end of the saw and it was undogged."

There was testimony on behalf of appellant to the effect that the bolt did not remain long enough after it dropped against the saw for the surface of the bolt to burn and become black.

A witness on behalf of the appellee, who thoroughly understood the method of operating the carriage and saw and who had worked at this plant at different times for more than nine years, testified that "the carriage should be run far enough to let the bolt go past the divider a few inches. Then the off-bearer takes it off the carriage. The ratchet man should release the dog when the off-bearer takes hold of the bolt. The carriage should be moved back a little--about four inches--as soon as the block is sawed to clear the divider. After the block is sawed the carriage is supposed to stop at the place for the off-bearer to take the block off. Then the sawyer runs the carriage back for another bolt. When the bolt is sawed and run past the divider and the ratchet man, using his lever, undertakes to release the bolt, it usually releases it at the same time at both ends. Sometimes there will be a sharp corner in the dog that will catch the bolt. It is not often that the teeth come out at one end and stay in at the other end, when the ratchet man undertakes to release the bolt. It would happen at least once in a day. When the hind end of the bolt is released from the dogs and the front end remains fastened, if the carriage is rolled back it will put the hind end of the bolt diagonally across. If the bolt had been put on the carriage and it was...