Ford v. Bodcaw Lumber Company

• Decision Date: 12 November 1904
• Citation: 83 S.W. 346,73 Ark. 49
• Parties: FORD v. BODCAW LUMBER COMPANY
• Court: Arkansas Supreme Court

83 S.W. 346

73 Ark. 49

FORD v. BODCAW LUMBER COMPANY

Supreme Court of Arkansas

November 12, 1904

Appeal from Lafayette Circuit Court, CHARLES W. SMITH, Judge.

Reversed.

Judgment reversed and cause remanded.

W. H Arnold and J. W. Warren, for appellant.

An employee is entitled to all the information his employer has in regard to the danger of the employment. 14 Am. amp; Eng Enc. Law, 800; 44 Cal. 187. Instruction No. 14 should have been given. 39 Ark. 17; 53 Ark. 117; 48 S.W. 1005.

C. B amp; Henry Moore and Webber amp; Webber, for appellee.

A servant can not voluntarily and unnecessarily expose himself to danger. 41 Ark. 542; 46 Ark. 388. Whether or not appellant was guilty of contributory negligence was a question for the jury. 59 Ark. 215; 58 Ark. 217; 39 Ark. 38; 2 Thomp. Neg. 977. Instructions Nos. 7 and 14 were properly refused. 56 Ark. 232. Instruction No. 1 asked by appellant was given in instruction of appellee. 60 Ark. 250; 69 Ark. 140. Exceptions to the giving of instructions were not saved. 27 Ark. 506; 30 Ark. 508; 34 Ark. 421; 39 Ark. 420; 36 Ark. 451; 60 Ark. 250; 70 Ark. 348. A judgment right upon the whole case will not be refused. 44 Ark. 556; 46 Ark. 542; 64 Ark. 236. An exception in gross will be considered if any instruction was good. 33 Ark. 223; 39 Ark. 337; 54 Ark. 16; 59 Ark. 370; 60 Ark. 250; 45 Ark. 485; 46 Ark. 485.

OPINION

BATTLE, J.

This action was brought by W. J. Ford, as administrator, for the benefit of the estate and next of kin of Dorus Ford, deceased, against the Bodcaw Lumber Company for damages occasioned by injuries the deceased received while in the employment of the defendant.

On the 21st day of June, 1901, the defendant was operating a mill at Stamps in this State. Dorus Ford was employed as a laborer in the mill, and was killed by a piece of plank violently thrown from one of the defendant's machines, an edger, at which he was at the time working. In the trial of this action before a jury evidence was adduced by plaintiff tending to prove that the deceased was what is called a "trucker" at one of the edgers in the defendant's mill, and, according to the custom prevailing in the mill, one of his duties was to assist in "feeding" such machine, and while discharging this duty he was killed. At this time he was a youth about seventeen years old, and had no experience in the work he was doing. On the other hand, evidence was adduced by the defendant tending to prove that when it employed the deceased "there was no regular place open to him, and he was to work at such places as might be assigned to him; that on the day of his injury he was sent behind the edger to relieve the boy there; that his duties were to receive lumber after it had passed through the edger, place it on trucks provided for receiving it, and then truck it to its destination in another part of the mill; that the place assigned was safe, and his duties did not require experience or instruction to enable him to perform them, but nevertheless he was shown by the defendant's foreman how to do his work, and was specially warned not to go near the 'feeding end' of the machine;" that he abandoned his work, violated his instructions, and, without the knowledge or consent of the defendant, undertook to feed the edger, and was killed. Evidence was adduced by plaintiff tending to show his death was occasioned by the negligence of the defendant, which introduced the testimony of witnesses tending to prove that it was without fault.

The plaintiff asked and the court refused to instruct the jury as follows:

"4. The jury are instructed that the mere fact that deceased was feeding the edger is not sufficient to constitute contributory negligence upon his part unless he was negligent in the manner in which he attempted to pass the plank through said edger, or had knowledge of or was advised by defendant of the danger and hazard of occupying a place about such machinery.

"6. The jury are instructed that an employee is entitled to all information his employer possesses in regard to the danger of the employment arising from extraneous causes, to enable him to determine for himself whether at the proffered compensation he will assume the risk and incur the hazard, and it is the duty of the employer to instruct, even when the danger is patent, if from youth, inexperience or other causes the servant is incompetent to fully understand the nature and extent of the danger; and if you believe from the evidence in this cause that the deceased, Dorus Ford, because of his youth and inexperience, could not reasonably be presumed to know, and did not know, the nature and extent of the danger of the place and work at which the defendant placed him, and that the defendant failed to fully instruct him as to the nature and extent of the danger of such employment, and that such failure upon defendant's part to so instruct him was the proximate cause of the injury which resulted in his death, you will find for the plaintiff.

"7. The jury are instructed that if they believe, from the evidence in this cause, that the deceased, Dorus Ford, was such a person as that by his experience, age and education, he did not know, and would not be likely to know, of the danger incident to the work at which he was assigned, then it was the duty of the defendant to inform him, not only that the service was dangerous and perilous as to the particular place, but where extraordinary risks were or might be encountered; and furthermore an employer failing to make an explanation to a minor servant is liable for an injury resulting from the danger known to the employer and unknown to the employee, although the immediate cause of the injury was negligence of a co-employee.

"14. The jury are instructed that if, by reason of the youth and inexperience of Dorus Ford, deceased, he was unacquainted with the danger incident to the work or the place he was engaged to occupy, and defendant did not give him proper instructions as to the danger of said place or work, and you further believe from the evidence that said place or work was dangerous, and that the defendant's failure to properly instruct the deceased as to the danger of said place and work was the proximate cause of the injury resulting in the death of the deceased, you will find for the plaintiff."

And the court, over the objections of the plaintiff, gave an instruction to the jury, which was number 9, and is as follows:

"The jury are instructed that, if they believe from the evidence in this cause that Dorus Ford, deceased, because of his youth and inexperience in such employment as that at which he was employed by the defendant, did not understand the danger of the place and work at which the defendant had assigned and put him, then it was the duty of the defendant, before assigning him to work at such place, to give such notice of the latent dangers incident to said work as was reasonably necessary, considering his youth and inexperience, to fully apprise him of the danger of such employment; and if the defendant failed to give such notice, and injury resulted in consequence of such failure to give said notice, then the defendant is liable therefor. "

Other instructions were given. The jury returned a verdict in favor of the defendant, and the court rendered judgment accordingly, and plaintiff appealed.

Appellee insists that "the instructions of neither the plaintiff nor the defendant were copied into the bill of exceptions lsqb;which we understand to mean the bill of exceptions as presented to the judge for signaturersqb and they are not sufficiently identified," and cited St. Louis, I. M. amp; S. Ry. v. Godby, 45 Ark. 485, and Lesser v. Banks, 46 Ark. 482, to sustain its contention. The paper referred to was a skeleton bill of exceptions, and was signed by the judge, and is, in part, as follows: "Whereupon the plaintiff asked the following instructions, to-wit: (Clerk here set out the several instructions asked by plaintiff in full.) Of which instructions the court gave those numbered 2, 3, 5, 8, 10, 11, 12 and 13, as asked, and refused those numbered 1, 4, 6, 7, 9, and 14. * * * The court gave instruction 9 asked by plaintiff amended to read as follows: (Clerk here set out instruction 9 asked by plaintiff as amended by the court.) * * * The defendant asked the following instruction, towit: (Clerk here set out instruction asked by the defendant in full.)" The question presented by appellee's contention was decided in Keith v. Hirschberg Optical Co., 48 Ark. 138, 2 S.W. 777. In discussing it the court said: "It is claimed, however, that the merits of the appeal are not properly before us for...