Gaither Coal Co. v. Le Clerch

• Decision Date: 20 October 1930
• Docket Number: No. 179.,179.
• Parties: GAITHER COAL CO. v. LE CLERCH.
• Court: Arkansas Supreme Court

31 S.W.2d 750

GAITHER COAL CO. v. LE CLERCH.

No. 179.

Supreme Court of Arkansas.

October 20, 1930.

Appeal from Circuit Court, Logan County; J. O. Kincannon, Judge.

Action by Anna Le Clerch against the Gaither Coal Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

E. H. McCulloch, of Ft. Smith, for appellant.

White & White, of Paris, G. L. Grant, of Ft. Smith, and Mosman, Rogers & Buzard, of Kansas City, Mo., for appellee.

MEHAFFY, J.

This appeal is prosecuted to reverse a judgment of the circuit court against appellant and in favor of appellee for $10,000 for the death of appellee's husband, Frank Le Clerch.

On and prior to July 13, 1928, Frank Le Clerch, who was the husband of appellee, was in the employ of the Gaither Coal Company as a coal miner engaged in mining coal at appellant's mine in Logan county, Ark. Within the mine where deceased, Frank Le Clerch, was at work for appellant, there was a line of wires charged with electricity, and appellee alleged that appellant negligently and carelessly failed to reasonably and sufficiently insulate said wires so as to prevent the discharge therefrom of such dangerous, deadly current of electricity, and negligently and carelessly failed to insulate said wires; that appellant negligently and carelessly permitted the insulation of said wires to become old, rotten, worn out, and defective, insufficient, wet, and insecure, so that the deadly and dangerous current of electricity had passed through said insulation, and negligently and carelessly failed to warn and notify its employee, Frank Le Clerch, of the hazards and dangers of coming in contact with said wires; that, while deceased on July 13, 1928, was passing along and through the slope entry and along adjacent to said wires, he came in contact with said wires as a direct result of the negligence and carelessness of defendant; that, because of the negligence of the appellant, the electricity from said wires escaped from said wires and into said Frank Le Clerch; that the negligence of appellant was the cause of the death of said Frank Le Clerch; and that appellee was thereby damaged. Appellant filed answer admitting it was a corporation and denying all the other material allegations in the complaint, and pleaded contributory negligence and assumption of risk. The evidence as to the condition of the wires and as to insulation is conflicting. Some of the witnesses testifying that the insulation was poor, some places naked, fabric ruffed up and saturated with water. Other witnesses testified that the insulation was perfectly good. After deceased went into the mine to work, his body was found about seventy or eighty feet from the entry, with his head towards the mouth and feet down the slope; he died a little after 4 o'clock. There were three electric wires in the mine along the west side of the slope, the lowest five feet from the ground, and two above, six or eight inches apart.

According to the testimony of Dr. Jewell, there was found on deceased a fresh burn on the left orbit, seared brown just like a piece of hot iron would burn; looked like all other electric burns he had seen; had a deep burn on the left shoulder, like a hot iron had been laid on the shoulder, about three inches long and about an inch wide; burn on temple about three inches long and an inch or more wide — were the only marks found. This witness, Dr. Jewell had studied electricity for twenty-two years and understood its effect on the human system and body; made experiments, and knows the effect of electricity upon the body. In his opinion death was caused by coming in contact with these wires; saw nothing to indicate that deceased had heart trouble. Deceased was 51 years old, and appellee was 47 years old. They had been married twenty-five years, and had only one child, a daughter, who was 22 years old and married. Deceased's health was good, and he had no heart trouble that appellee knew of. He had no burns on head or shoulder before his death; earned fifty or sixty dollars a week and spent fifty or sixty dollars month on appellee.

A number of witnesses for appellant, including some members of the coroner's jury, testified that they found no naked places on the wires, and that they appeared to be in good condition; that the insulation appeared to be fairly good. Some of them stated that they did not think a man could go along and fall and get killed where deceased was found. They testified also that the wires were the same as used in other mines. Some of the appellant's witnesses also testified, in substance, that there was a little scar on deceased's head and a burned place on his shoulder. They ran their hands over the wire without any injury or shock; that they did not find any place where deceased could have been hurt on the wire. Some of these witnesses, however, admitted that the insulation was a little frizzly around the wire. The wires were three years old. It was shown by one of appellant's witnesses that a fuse had blown out about the time they found the body; that there was a little noise or flash. After this fuse blew out he found the body, found the man was dead.

The testimony was conflicting on all material points, and no useful purpose could be served by setting it out at length.

The appellant contends that the court erred in not granting it a new trial and in permitting a verdict to stand against the weight of the evidence and physical facts, but a sufficient answer to this is that there was ample testimony to make the negligence of the appellant a question for the jury, whose province it is to pass upon the credibility of witnesses and the weight to be given their testimony.

It is next contended that the court erred in not permitting appellant to put on all the members of the coroner's jury. The court said: "Don't call any more coroner's jury to show the same thing. You have had a number of the members of the jury. If you have anything new I will permit it. If it is the same thing it just takes the time of the jury." However, appellant did not make any objection to this statement of the court at the time and did not state what he expected to prove by any other witnesses he wished to put on. The court had already permitted six of the coroner's jury to testify.

After the statement by the court, the appellant continued with the examination of the witness he had just called and did not call any other witness and did not offer any other evidence, but acquiesced, without objection, in the ruling of the court. This objection cannot be considered by this court for further...