Garretson-Greeson Lumber Company v. Goza
| Decision Date | 07 December 1914 |
| Docket Number | 37 |
| Citation | 172 S.W. 825,116 Ark. 277 |
| Parties | GARRETSON-GREESON LUMBER COMPANY v. GOZA |
| Court | Arkansas Supreme Court |
Appeal from Union Circuit Court; Charles W. Smith, Judge; affirmed.
Judgment affirmed.
Wynne & Harrison, for appellants.
1. Plaintiff knew of the danger and risk and the mere fact of minority does not, of itself, create an absolute duty on the part of the employer to go through the form of instruction and warning, and is not liable for failure to do so. 104 Ark 499; 56 Ark. 232; 1 Labatt, Master and Servant, § 291. The minor assumes all ordinary risks known to him. 73 Ark 49-56; 39 Id. 37; 40 N.E. 80; 43 A. 106; 32 N.E 654.
2. Defendant owed plaintiff no greater duty than it would have owed to an adult. Supra.
3. It was error to instruct the jury as to extraneous issues or matters not raised by the proof. 74 Ark. 22; 88 Id. 38.
Aylmer Flennekin and Neill C. Marsh, for appellee.
1. The evidence shows that the minor did not appreciate the dangers incident to his work, and his youth and inexperience demanded warning and instruction. 56 Ark. 232; 104 Id. 499.
2. The evidence tended to establish (1) that defendant was negligent in providing a reasonably safe place to work and (2) in failing to warn a minor. Ubi supra.
Ben H. Goza, by his next friend, E. B. Goza, instituted this action against the Garretson-Greeson Lumber Company to recover damages for injuries suffered by him on account of the alleged negligence of the defendant company. At the time of his injury the plaintiff was a minor eighteen years of age and was employed by the defendant to haul sawdust away from its mill, and to clean up around the boiler. Prior to that time he had worked at a sawmill for three weeks at the cut-off saw and, except for that, had never worked around a sawmill during his life. He was substituted for another employee on the morning of the day of his injury and was injured about 3 o'clock in the afternoon. His duties were to haul sawdust from behind the boiler and also from a place under the mill to which it had been conveyed and deposited by means of a trough. The sawdust was carried from the saw through a trough or box by means of an endless chain working over a sprocket wheel. The wheel was fastened to large blocks which were in turn fastened to upright posts, so that the entire diameter of the wheel, which was about eighteen inches or two feet, extended out beyond the posts. The trough did not quite come to the wheel and the chain dragged along the bottom of the trough. When it emerged therefrom it passed on over the sprocket wheel into a trough leading back toward the saw. The conveyor chain dragged loosely along the trough and by that means carried the sawdust along with it. The sawdust was deposited in the space between the mouth of the trough and the post where the conveyor chain passed over the sprocket wheel.
One of the witnesses stated that when the chain passed over the mouth of the trough and came up over the sprocket wheel it had cogs on it which tightened up and caused the chain to further sag or jump at the point where it caught into the cogs of the sprocket wheel, and that one side of the chain was very much worn, causing it to run unevenly.
According to the testimony of Ben H. Goza, he would first haul away a load of sawdust in a cart from behind the boiler and would then go to the space between the end of the trough and the sprocket wheel and carry away a load of sawdust from there. The sawdust accumulated there very rapidly while he was carrying away the sawdust from behind the boiler. At the time he was injured he was standing beside the face of the sprocket wheel shoveling sawdust into the cart and stated that this was the only way in which he could do the work. He had noticed that when the chain left the end of the trough and came up to fasten into the cogs of the sprocket wheel, it tightened up and jumped. This caused the chain to sag down. In some manner, while he was shoveling the sawdust into the cart, his arm got caught in the space between the chain and the sprocket wheel and he was severely injured. He stated that there was not room enough for his arm to have caught in that space unless the chain tightened up and sagged down. He knew that if his arm should be caught it would be injured, but said that he was doing his work in the only practicable way it could be done, and that he did not appreciate the danger from having his arm caught between the chain and sprocket wheel. He had not been warned or instructed that there was any danger in doing the work this way. He also stated that there were cogs on the sprocket wheel and that when the chain passed over the end of the trough and caught in these cogs it would tighten and then sag.
Evidence was adduced in behalf of the defendant tending to show that the sprocket wheel had no cogs on it and that the chain was carried over it by means of the friction of the chain passing over the wheel.
The jury returned a verdict in favor of the plaintiff in the sum of $ 1,250.00 and the defendant has appealed.
It is first contended by counsel for the defendant that the court erred in giving instruction No. 2, at the request of the plaintiff. The instruction is as follows:
"You are instructed that if you find from a preponderance of the evidence in this case, that the plaintiff while in the discharge of his duties as an employee of the defendant, and while exercising the care which a reasonably prudent man would have exercised under like circumstances, was injured by the negligence of the defendant in failing to exercise reasonable care to provide him a reasonably safe place in which to work and discharge the duties of his employment, and failed to exercise reasonable care in hooding or protecting the sprocket wheel complained of then your verdict will be for the plaintiff."
Counsel for the defendant insist that the instruction is erroneous because, they claim, it in effect assumes that the defendant was guilty of negligence in failing to hood or protect the sprocket wheel. We do not think the instruction is open to that objection; on the other hand, we are of the opinion that it left that open as a question of fact to be determined by the jury. If counsel for the defendant...
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