Francis v. Arkadelphia Milling Company

• Decision Date: 17 April 1922
• Docket Number: 314
• Citation: 239 S.W. 1067,153 Ark. 236
• Parties: FRANCIS v. ARKADELPHIA MILLING COMPANY
• Court: Arkansas Supreme Court

239 S.W. 1067

153 Ark. 236

FRANCIS v. ARKADELPHIA MILLING COMPANY

No. 314

Supreme Court of Arkansas

April 17, 1922

Appeal from Clark Circuit Court; George R. Haynie, Judge; affirmed.

Judgment affirmed.

W H. Mizell and Callaway & Callaway, for appellant.

Plaintiff made out a case of negligence on the part of the defendant and the matter should have been submitted to the jury for determination. 100 Ark. 53.

Plaintiff did not assume the risk of injury from the negligence of the master or his fellow workmen. 118 Ark. 49; 106 Ark. 25.

The doctrine of res ipsa loquitur applies. 29 Cyc. 591. While this doctrine is usually applied in the case of common carriers, it may apply with equal force as between master and servant. 105 S.W. 1057, 13 L. R. A. (N. S.) 140; 202 Ill 144; 139 Ark. 489; 86 Ark. 76; Vol. 8 Encyc. of Evidence, p. 886.

McMillan & McMillan and T. D. Wynne, for appellee.

Appellant assumed the risk, and a verdict was properly directed. 89 Ark. 50; 76 Ark. 69; 97 Ark. 486; 95 Ark. 560; 100 Ark. 462.

There was no allegation of negligence in the complaint as to the taking down of the sacks, and proof directed to this issue could not avail plaintiff. 41 Ark. 394; 29 Ark. 500; 13 Ark. 88.

The defect, if any, was open and obvious. 90 Ark. 392.

OPINION

HUMPHREYS, J.

Appellant instituted suit against appellee in the Clark Circuit Court to recover damages in the sum of $ 5,000 on account of personal injuries received from falling sacks of feedstuff in one of the rooms of appellee's grain elevator at Arkadelphia, through the alleged negligence of appellee in stacking the said feedstuff and leaving the same stacked to such height and in such manner as to cause same to fall from its own weight upon appellant while engaged in cleaning the floor of said room, which work was in the line of his duty. Appellee filed an answer denying that it negligently stacked the feedstuff, or that it left same stacked in a negligent manner, and interposing the further defenses of assumed risk and contributory negligence by appellant. The cause was submitted upon the pleadings and evidence, at the conclusion of which the court peremptorily instructed a verdict for appellee, over the objection and exception of appellant. From the directed verdict, and the judgment rendered in accordance therewith, an appeal has been duly prosecuted to this court.

The evidence, stated in its most favorable view to appellant was, in substance, as follows: Appellant, a man twenty years of age, was employed by appellee to truck sacks of feedstuff, which were stacked in warerooms at appellee's elevator in Arkadelphia, into cars on the outside of the building for the purpose of shipment, and also to clean up rice hulls which had been spilled on the floor in said rooms. He had nothing to do with taking the sacks down from the pile. This was done by another or other employees. After the sacks had been removed from the stack, appellant would assist in loading them on his truck and then push the load out to the car, and after unloading it would come back for another load. On the morning of the injury, which occurred about nine o'clock, after appellant had been engaged for an hour in trucking sacks of rice hulls out of the room in which the injury occurred, the foreman took him away from this work and sent him, for about 30 minutes, to another part of the mill. He was then sent back to the room to clean up the spilled rice hulls from the floor. While bent over, scooping up the hulls, several sacks fell off the pile and inflicted the injury complained of. In unstacking the piles the custom was to begin at the top and unstack them towards the bottom, leaving them in the shape of stairsteps. In this particular room, on this occasion, the stacks had been removed in such way as to leave those standing perpendicular. In fact, the stacks bulged out to some extent towards the top. At the time the injury occurred appellant had been working for appellee in the same capacity for about three months, and was familiar with the manner of stacking and unstacking the sacks of feedstuff. He knew the manner in which the sacks should be removed from the stacks in the several warerooms, and the manner in which the stacks should be left when only a part of the sacks...