Furlow v. United Oil Mills

• Decision Date: 01 July 1912
• Citation: 149 S.W. 69,104 Ark. 489
• Parties: FURLOW v. UNITED OIL MILLS
• Court: Arkansas Supreme Court

149 S.W. 69

104 Ark. 489

FURLOW v. UNITED OIL MILLS

Supreme Court of Arkansas

July 1, 1912

Appeal from Little River Circuit Court; Jeptha H. Evans, Judge, on exchange; affirmed.

Judgment affirmed.

Seth C Reynolds and W. P. Feazel, for appellant.

1. The day and night superintendents of appellee having both testified that they had warned decedent of the dangers incident to his employment and instructed him how to avoid them, and having further testified that they warned and instructed their other minor employees, appellant ought to have been permitted, when he offered to do so, to introduce testimony of other minor employees to rebut the same. 48 Ark 460. If the presumption reasonably flows from the fact of failure to warn other minor employees that they did not warn the deceased, the testimony is competent and admissible. 8 Enc. of Ev. 926; 11 Id. 775, note; 27 P. 199; 34 P 216. It is admissible under the doctrine of probabilities. 11 Enc. of Ev. 777, note 7; 58 Ark. 468; 48 Ark. 182. See note 34, 11 Enc. of Ev. 787. It was admissible for the purpose of contradicting the two superintendents. 79 Am. St. 826.

2. The effect of the court's amendment of appellant's requested first instruction so as to substitute "and" for "or" between the words "minor" and "inexperienced" was to charge the jury that no warning and instructions were necessary unless the decedent was both a minor and inexperienced, whereas such necessity exists where the employee is either a minor or inexperienced. 90 Ark. 411.

3. If decedent was mentally and physically unfit to do the work assigned to him, because of long service without rest or sleep, and was himself not aware of his unfitness and did not know or appreciate the danger, and if the defendant or its foreman, knowing his unfit condition, ordered him to do the work, then it is liable for the resultant injury, and the court erred in refusing appellant's second requested instruction. 91 Ark. 103.

4. The court's instructions on the question of assumed risk define the law of assumed risk as applied to adult persons rather than to minors. In the case of a minor the burden rests upon the employer to show that the servant comprehended the particular risk; and the question whether he understood and appreciated the danger is for the jury to determine from all the facts and circumstances in evidence. 90 Ark. 407; Id. 481. Knowledge of the danger was itself a question of fact for the jury. 53 Ark. 117; 92 Ark. 109. And knowledge of the defect does not imply appreciation of the danger. White's Sup. 4658. See, also, 141 S.W. 1177.

5. A minor is only held to that degree of care and caution which minors of his age, experience and intelligence are presumed to be capable of exercising. 81 Ark. 187; 88 Ark. 181 90 Ark. 145; 81 Ark. 595.

T. D. Wynne, A. D. DuLaney, J. S. Lake, J. S. Steel and James D. Head, for appellee.

1. The question whether warning and instructions were given to other minor employees of appellant was foreign to the issues in this case, incompetent, and hence inadmissible. 58 Ark. 129; 90 Ark. 206-209. It was not admissible for any purpose. 89 Ark. 530; 76 Ark. 302; 52 Ark. 308; 59 Ark. 531; 72 Ark. 409; 93 Ark. 313.

2. Appellant's first request was properly refused. When the master has provided a reasonably safe place in which, and reasonably safe instrumentalities with which, to do the work, he has performed his full duty in this respect; and if the servant, contrary to instructions, uses an instrumentality for one purpose which is constructed and intended for another purpose, the master would not be guilty of negligence if the instrumentality was suitable for the purpose intended.

Since the instrumentality employed in this case is shown to have been intended for another purpose than that for which it was used, before negligence can be predicated thereon, it must be shown that the company invited its use by the oilers, or that such use had been so long continued as to charge appellee with notice. 1 Labatt, Master and Servant, § 26; Id., § 28; Id. 881, § 342; 2 Bailey, Pers. Injuries, 1398, § 474; 122 Mich. 630, 80 N.W. 554; 77 Ark. 405; 48 Ark. 333.

3. Appellant's second and fourth requests assume that appellee exposed deceased to unnecessary danger, and were properly refused.

Negligence may not be predicated upon an order exposing one to normal dangers. 91 Ark. 103; 4 Am. Rep. 364; 1 Labatt, 1247, § 440c; 77 Ark. 367; The mere fact that deceased was working overtime will not absolve him from the assumption of risk. 2 Bailey, 968, § 362; 52 N.W. 740.

4. There is no negligence on the part of appellee shown, and it was entitled to a peremptory instruction. If anything at all should have been submitted, it was the two propositions, first whether or not deceased was so young and inexperienced that the appellee, in the use of ordinary care, should have given him instructions or warning, and, second, were proper instructions or warnings given him. 53 Ark. 117; 97 Ark. 180; 82 Ark. 11.

5. The court's instructions on the question of assumed risk are in keeping with principles announced and approved by this court. 97 Ark. 180. See also 48 Ark. 333, 337; 41 Ark. 452; 82 Ark. 11; 5 Thompson on Neg., § 5330; 60 Ark. 438; 65 Ark. 98; 77 Ark. 367; Id. 458-463; 67 Ark. 209-218; 53 Ark. 458; 71 Ark. 55.

6. A minor can assume risk as well as an adult. If he is experienced in his work, he undoubtedly does assume the risk, and in such case the mere fact of minority would not aid in a recovery. 2 Bailey, 954, § 358; 1 Labatt, §§ 19, 20; Id. 1076, § 309.

OPINION

FRAUENTHAL, J.

This is an action instituted by the administrator of George Furlow to recover damages for the pain and suffering he endured resulting from an injury which he sustained while in the defendant's service. The defendant is a domestic corporation, owning and operating an oil mill at Ashdown, and Furlow was employed by it in the capacity of oiler of the machinery at this mill. While in the discharge of his duties, his left forearm was caught and crushed in some cogs, and from the injury thus received he died about six days later. In the defendant's mill there were two sets of line shafts, which met at right angles, and were secured to a frame about eight or ten feet above the floor. At the junction of these line shafts there were two sets of cogs, forming what is called a "right-angle drive," or miter gearing. On the line shafts there were several oil boxes or vats which required to be oiled. About twenty-six inches distant from the cogs there was what is called a "condenser," which is a box with a flat top, about eighteen inches below the level of one of these line shafts. Between the line shaft and the condenser, and about three feet below it, was a plank about one foot wide, running parallel with the line shaft. The plank was nearest the line shaft, and at one end the cogs reached somewhat over its edge. The testimony on the part of the defendant tended to prove that these boxes or vats on the line shafts were oiled by the employee while standing upon the condenser, and that the plank had been placed and was only for the purpose of standing thereon while cleaning and repairing the machinery when the mill was not running. The testimony on the part of the plaintiff tended, however, to prove that other employees engaged in oiling this machinery stood on the plank while performing this duty, and that Furlow received his injury while standing on this plank and oiling the gearing at these cogs. It is claimed by counsel for plaintiff that the plank was so narrow that it caused one to press against the cogs, which were left unguarded and uncovered, on account of which Furlow's arm was caught and crushed by the cogs.

The injury occurred on February 2, 1911, about noon, and Furlow would have been twenty-one years old the following November. He had been in the defendant's employment at this mill for about four seasons, in various capacities which brought him in proximity with this machinery, and he had worked as oiler for 143 1/2 days or nights just prior to the injury. He was of the average intelligence of a young man of his age, and the testimony on the part of the defendant tended to prove that he had good ability and had acquired considerable experience in the work in which he was engaged. The testimony of the defendant's night and day superintendents also showed that they had, at the time he entered this employment, properly instructed and warned Furlow relative to his duties and the dangers connected therewith; and this testimony is uncontradicted.

There was also testimony tending to prove that the cogs were installed and operated in the manner usually employed by ordinarily prudent and careful oil mill men engaged in like business.

The deceased had worked the night of January 31, and until the morning of February 1. He again went to work at noon on February 1, and worked until noon of February 2, when the injury occurred. There is a conflict in the testimony as to whether the deceased went to work on February 1 at the request of defendant's superintendent or upon his own motion and over the superintendent's protest. The superintendent testified that Furlow requested that he might work during that half-day, because the mill would shut down during the following night, and he desired to earn all that he could; that he objected to his working through the day, but that Furlow insisted on doing so. On the part of the plaintiff, however, the testimony tended to show that the superintendent requested Furlow to work during this half-day because the day oiler was at that time sick.

The trial resulted in a verdict for the defendant. The plaintiff seeks by this appeal a reversal of the judgment upon the ground that the court...