Fordyce Lumber Co. v. Lynn

• Citation: 158 S.W. 501,108 Ark. 377
• Parties: FORDYCE LUMBER COMPANY v. LYNN
• Decision Date: 19 May 1913
• Court: Arkansas Supreme Court

158 S.W. 501

108 Ark. 377

FORDYCE LUMBER COMPANY v. LYNN

Supreme Court of Arkansas

May 19, 1913

Appeal from Dallas Circuit Court; Henry W. Wells, Judge; reversed.

STATEMENT BY THE COURT.

Appellee brought this suit against the Fordyce Lumber Company for damages for personal injuries resulting in the loss of his right hand, which occurred while he was unchoking, or cleaning out, a sawdust box, or chute, at the lath machine at which he was employed.

The negligence alleged was that the lumber company had failed to exercise reasonable care to furnish him a reasonably safe place and reasonably safe instrumentalities with which to perform his work; specially, that it failed to exercise ordinary care in furnishing him a stick, not reasonably safe and strong, to be used in unchoking said lath machine when the saws of same should become obstructed by dust or debris and that by reason of said negligence, he received the injury complained of.

The answer denied any negligence, and plead assumption of risk and contributory negligence in bar of the action.

Appellee was twenty-three years old when the accident occurred, and had been working for the lumber company about nine months. He first worked at the lath machine in catching stock. He also worked, putting slabs in the long conveyor chain that runs out to the fire. He was changed from first one place to the other, and worked mostly at tying lath behind the little machine, and had worked at the little lath machine tying lath before he was hurt, about fifteen days. Before he began work at this machine, he was told by the foreman to go upstairs and tie lath, and be particular to keep the lath machine going. His regular duty on the day he was hurt was tying lath. It was the duty of the feeder to unchoke the sawdust chute, and of the tyer to take the feeder's place and keep the machine going during his absence. The machine at which he was hurt was about three feet long, and in the middle of it there are three saws about eighteen inches in diameter that run a quarter of an inch apart, and about an inch and a quarter of which project up above the surface of the table. The feeder pushes the lath in the saws, and they are held in place by a guide which pushes the lath, and the grader then takes the bundle. The saws are about eighteen inches in diameter. The sawdust box was on the front side of the machine beneath the saws. The lath machine sometimes choked up. There was a dust trough to the left of the machine. The dust pit or box was three feet at the top and six inches at the bottom. To get the sawdust out of the box or receptacle, you take a stick six feet long, and with it you push the sawdust and other particles falling from the laths gradually down to the lower part of the sawdust receptacle. One man worked the stick down from above where the sawdust went out of the box, and then a man below the mill floor worked up toward him. The box sometimes became choked for the reason that it was tapering--it was smaller at the bottom than at the top. A small piece of lath would get in the box, and the sawdust would get in there and choke. When the sawdust got up to the saws, it would smoke.

Appellee was feeding the machine when he was hurt, the regular feeder having gone over to the store, and had run about three bundles through it. His brother was tying and grading also. When he was injured, he was unchoking the lath machine, and described the occurrence as follows: "In unchoking the machine, I took a stick about six feet long, and worked it down to where I supposed was the bottom of the pit where the narrow part came in. I would have to put my weight on the stick and work it gradually. When I had worked the stick to the bottom, another man worked up to it from beneath, and sometimes the sawdust would slip down five or six inches and hang again. I think about the time the stick struck the bottom, it overbalanced me, and I struck the saw. The saws were right in front of me. Another time I was working the stick down, there was a hole in the floor beside the man where I was working. The pit that received the sawdust was between me and the saws. I had to lean over in order to work the stick down. The trough or sawdust pit was to my right and I stood in front of the machine. My right hand was next to the machine. I was unchoking it and the sawdust pit in front of me. I could not push the stick through the sawdust without working it in the manner just stated. The teeth of the saw which hurt me were about one and one-fourth inches long. I did not shut the machine down when I began to unchoke the sawdust spout. It had never been the custom to do this. I had never seen anybody else shut it down. The three saws were located about six and a half or eight and a half inches from the edge of the table. The table through which the saws ran was a flat one, and had an apron attached to it. The apron was iron. While I was working the stick down, it broke in two as I was leaning forward. My right hand went into the saws. It went under the table and came in contact with the saw. I received a cut on my hand, and had the hide of this finger knocked off. My right hand was cut so badly that nothing but the little finger was left. It is cut off just above the thumb and cut right straight across down to the root of the little finger. All of the fingers and the thumb, except my little finger, are gone. The little finger is perfectly stiff. I got the stick I was using near the end of the stairway that goes up in the room. Mr. Wells had put the stick there.

"There were six or eight sticks in the pile piled up near the steps of the fire room, and I went around about eight feet from where I was and picked one up. I could have picked up any stick I might have selected. I didn't look at the stick."

Witness's brother went down below, and was working from the bottom with a stick up the chute, and pulled out a piece of the stick that broke off when appellee was using it from above. He said the stick was cross grained and broke in two, and split diagonally about two and a half inches at the point of breaking. The sticks were about five feet long and about an inch square, with one end somewhat sharpened. They had been taken off the slasher saws, and it seems as though no special effort was made to furnish any particular grade of stick for the purpose. Another witness testified that what was meant by the grain in lumber was the stripes that run lengthwise in a stick. The grain runs lengthwise, usually, and it isn't true that it will break in two on account of the cross grain in handling it unless it is rotten

The court instructed the jury, which returned a verdict against the lumber company, and from the judgment thereon, it appealed.

Judgment reversed and cause dismissed.

T. D Wynne, for appellant.

1. There is no duty resting on the master to inspect those common tools and appliances with which every one is conversant. The servant assumes those risks. 1 Labatt on Master and Servant, § 154, p. 331; 4 Thompson on Negl (2 ed.), § 4708; 55 Ark. 484; 88 Id. 36; 82 S.W. 1026; 118 P. 764; 99 Id. 131; 78 N.W. 572; 47 N.Y.S. 285; 101 N.Y. 396; 5 N.E. 56; 98 F. 192; 29 P. 175; 69 N.W. 352; 71 A. 649; 68 N.E. 936; 116 Am. St. 373; 76 N.W. 497; 51 S.W. 874; 71 A. 649; 74 N.W. 91; 47 N.E. 1012; 51 N.W. 350; 69 N.W. 352; 90 Ark. 392; 57 Id. 506.

2. Appellee contributed to his injury by his own negligence. 66 Ark. 239; 90 Id. 392.

3. The mere fact that the stick broke will not raise a presumption of negligence. 90 Ark. 331; 89 Id. 52.

Powell & Taylor, for appellee.

1. The simple appliance rule does not apply to this case. 26 Cyc. 1136-8; 20 A. & E. Enc. Law (2 ed.), 89; 4 Thomps. on Negl. (2 ed.), § 4708; 1 Labatt on Master and Servant, § 154, p. 331; 64 S.E. 65; 54 So. 252; 138 S.W. 1150; 49 N.E. 854; 92 N.W. 535.

2. The appliance causing the injury was defective when originally furnished. It was not open, obvious and patent. It was selected by the foreman and used in obedience to his commands. 138 S.W. 1150; 49 N.E. 854; 92 N.W. 535; 88 Ark. 36; 82 S.W. 1026; 56 Kan. 109; 134 Ind. 226; 118 P. 764; 54 So. Rep. 252; 132 Ga. 221; 78 N.W. 572; 30 F. 925; 18 A.D. 223; 101 N.Y. 396; 92 Ark. 350; 88 N.W. 758.

3. Recovery has been allowed for defects in simple instruments and appliances in 96 F. 446; 50 N.E. 657; 49 Id. 854; 69 P. 184; 73 N.E. 540; 75 N.E. 1093; 54 L. R. A. 456; 205 P. 305; 67 N.E. 342; 87 N.Y.S. 1031; 56 F. 1009; 58 N.W. 878; 9 S.W. 790; 46 Minn. 18; 66 Ark. 237; 95 Id. 588; 144 Mass. 229; 137 Mass. 204; 47 S.W. 311; 100 Ind. 181; 55 Ill. 234; 56 Ark. 206.

4. In the absence of knowledge on his part the servant has a right to presume that the master has performed the duty which he has assumed. 1 Labatt on M. & S., pars. 7-14; 26 Cyc. 1204; 88 Ark. 181; 90 Id. 233; 91 Id. 343; 91 Id. 389; 48 Id. 334; 119 S.W. 73; 92 Ark. 350.

5. The servant does not assume the risk. 77 Ark. 374; 77 Id. 458; 89 Id. 424; 92 Id. 102; 95 Id. 291. There is no burden of inspection or examination placed on the servant. 48 Ark. 333; 101 Id. 197; 2 Labatt on M. & S., § 603, p. 1743; 47 N.E. 1012; 93 Ark. 569; 121 S.W. 273; 152 U.S. 684; 83 Ark. 318; 78 Tex. 486; 82 Ark. 372; 4 Thomps. on Negl., par. 3803 c.; 88 Ark. 181; 100 Id. 465; 151 S.W. 1005.

OPINION

KIRBY, J., (after stating the facts).

It is insisted for appellant that the rule of law, devolving the duty upon the master to exercise ordinary care to provide the servant with reasonably safe instruments and appliances for the performance of his work and to exercise ordinary care in the inspection thereof, has no application to the facts of this case, which, it is insisted, comes within the exception to the rule, relating to simple tools and appliances, and that the court...