Gaster v. Hicks

• Decision Date: 10 March 1930
• Docket Number: 208
• Citation: 25 S.W.2d 760,181 Ark. 299
• Parties: GASTER v. HICKS
• Court: Arkansas Supreme Court

25 S.W.2d 760

181 Ark. 299

GASTER v. HICKS

No. 208

Supreme Court of Arkansas

March 10, 1930

Appeal from Pulaski Circuit Court, Third Division; Marvin Harris Judge; affirmed.

Judgment affirmed.

Roscoe R. Lynn and June P. Wooten, for appellant.

Sam T Poe, Tom Poe and McDonald Poe, for appellee.

OPINION

BUTLER, J.

This suit was brought by the appellee to recover damages for personal injuries claimed to have been received while working in the employ of R. L. Gaster, now deceased, which injuries were received on June 3, 1925. The appellee was working on a grader used to spread gravel upon the highway, the grader being drawn by a tractor, and in attempting to start the tractor the appellee's arm was caught in a large fly-wheel attached to the same, and was so badly injured as to render it useless and deformed. The appellee seeks to hold the appellant liable because of appellant's failure to furnish him reasonably safe equipment with which to work, in that, first, the tractor had been equipped with a cranking device which, at the time of the injury to the appellee, was out of repair and not being used, and that the appellant's failure to maintain such cranking device made the tractor dangerous to start; and, second, the ignition and timing device was not properly arranged, the result of which was to cause the tractor to improperly function in starting; that these defects were unknown to the appellee, and were not of such an obvious character as to impute to him the knowledge of their unsafe condition.

The appellant denied any defect in the equipment or negligence on his part and pleaded contributory negligence and assumption of risk on the part of the appellee, and alleged that the negligence, if any, was that of appellee's fellow servant for which appellant was not liable.

It may be said that prior to the institution of the suit, R. L. Gaster, appellee's employer, died, and this suit was brought against Dorothy E. Gaster, as administratrix. Appellant's intestate was engaged in building a gravel highway, and the appellee was employed by him as a grader operator. Appellee reached the place where he was to work on June 2nd, and there found the Rumley tractor, which was to pull the grader, being worked on. Appellee assisted to some extent the mechanic and one Fowler, the tractor man, and in the afternoon, after some repairs had been made on the tractor, they tested it to see if it could be started and found that it would run. At the time the tractor had no starting device, and this made it necessary for whoever "cranked" it to do so by standing in front of the flywheel, between it and the front of the tractor, and pull the flywheel over. This was done by grasping it with the hands and pulling it forward so that it would revolve, and this was called "cranking" the tractor. Several cranked it on the afternoon of June 2d and also in the forenoon of June 3d, including appellee, when it would start all right. When Fowler, who was running the tractor, and the appellee got ready on the afternoon of June 3d to start on their work, Fowler operated what was called the "choke"--an equipment with which to let the gasoline into the proper part of the mechanism so that it might explode when the wheels turned. Appellee started to crank the engine in the usual way, when, for some reason, as the engine began to run, appellee's arm was caught in the flywheel and was broken and badly mangled.

As to just how this injury occurred, the testimony is in conflict. It was agreed that one of the witnesses who was absent would testify, if present, that the injury was occasioned by appellee's foot slipping, causing him to fall forward with his hand into the flywheel just as he started the engine. This witness was Lowell Miller, who, the appellee testified, was about one hundred yards from the place of the accident handling some rock at the time of the injury. Fowler, the only other witness as to the manner of the accident, except the appellee, stated: "Hicks and I went to the machine to start our day's work after lunch. Mr. Hicks went around to crank the machine while I was choking it--it was the same as a car; it had a throttle with gas on it. In some manner his hand slipped, or, in other words, it got away from him and made a backfire. * * * In this instance it seems it happened that, instead of bringing it over the firing point, he brought it most to the top point, and instead of firing it turned backwards; it turned back, and this explosion ignited. Couldn't say whether he didn't turn it quite far enough or turned loose too quickly. The tractor kicked with me. His arm got caught on a part of the frame."

The appellee testified, in relating how the injury occurred, as follows: "After dinner was when it happened. It didn't seem to want to start. * * * I stood on the ground and turned the flywheel to crank it; had seen Fowler crank it that way. * * * I had hold of the spoke and the wheel when it fired and jerked out of my hands backwards. It came back, and that put my hand through the spokes--jerked it there. By jerking you it would throw you out of balance and throw you in there. I fell into the wheel. My hand got caught between the spoke and the cross-bar; that is, the side part of the frame. Really, I don't know where it was caught, whether it was on the frame or inside of the water pipe or cooler. Had my hands way down by this thing when it happened. My hands were close to the frame when it fired and went back the other way. I don't know how far it went around."

The above is substantially all of the testimony relative to the circumstances attending the operation of the tractor at the time of the injury, and the manner in which said injury occurred.

Ellis was in charge of the job and testified, among other things, that the tractor had a starting device, but that it was out of order. Fowler stated, in one part of his testimony, as follows: "I was under the impression that it had a safety cranking device on it. You see, this has been about four or five years ago, and my memory on some things isn't good, but the same model tractor I had operated before this one was equipped with a safety cranking device." And later on in his testimony he was asked if he had examined a tractor that had been shown him the day before he testified, and he stated that it was the same tractor in use at the time of the accident; that it was the same tractor; that he identified it by a camshaft that he had put in there, and that there were lots of parts missing--removed from the tractor; that on examining the flywheel he did not find any notches or lugs on the inside, and that he had been under the impression that it had starting lugs on it, but when he went out to the machine on the day before testifying he found it had no lugs. "I believe it did have on the other machine, and I was of the impression that this one did too. I can be mistaken about it."

The tractor was a six-thirty model, and Joe Lyon, a salesman for the Runley people, introduced a catalogue showing the lugs or indentations on the inside of the flywheel in which a part of the starting device fitted when a tractor was so equipped, and this witness stated that some six-thirty model tractors had starting devices on them and some did not; that he had examined the flywheel of a tractor shown him the day before the giving of his testimony represented to be the tractor in use at the time of the injury, and that the flywheel had no notches in which the end of the arm of the safety device would be inserted when it was being used to start the tractor. The witness stated that, when the starting device was in use, the tractor could be started without one having to put his hands upon the flywheel or coming in contact with it.

The testimony was given on the 13th day of March, 1929. The tractor was used after the accident in June, 1925, until sometime in August of that year, when it was set aside and had not been used since. The evidence shows that the tractor was old and worn and had to be continuously repaired in order to keep it in working order, and that on the day before the injury to the appellee it was being repaired and the timer was being adjusted. The evidence shows that the ignition system was poor, Fowler explaining that, if it had not been, the tractor could have been started easily by one individual, but that it required, in its condition, the efforts of two to get it started. A gasoline engine mechanic was doing the repair work, and Fowler was helping him. The extent to which the appellee assisted was to hand them tools or parts as required. The mechanic did not testify, but Fowler stated that a change was made from a low tension to a high tension magneto, and the spark was accelerated to fire a little early to get more power; that the timing mechanism, the ignition and the magneto on the tractor were not visible; that a "backfire" is where the spark is advanced, and when you crank it fires early, and instead of turning the right way or forward, it turns backward--it is simply where the spark is advanced too far, and it fires before the piston gets in the right position."

F. A. Ussery was called as an expert witness and testified that he had been in the automobile repair business for twenty-three years, and had had experience with internal combustion gas engines. He was asked this question:

"Q. I wish you would tell the jury what the effect of setting up the timing gears on one of the internal combustion engines is as to whether it is likely to cause backfire more frequently than if retarded? A. Well, did the magneto have a spark control on it? Q. It had an impulse starter on it. A. It had an impulse starter but no spark control? Q. No, no spark control. Well, in timing an engine of that...