Graham v. Thrall

• Court: Arkansas Supreme Court
• Writing for the Court: FRAUENTHAL, J.
• Citation: Graham v. Thrall, 95 Ark. 560, 129 S.W. 532 (Ark. 1910)
• Decision Date: 06 June 1910
• Parties: GRAHAM v. THRALL

129 S.W. 532

95 Ark. 560

GRAHAM v. THRALL

Supreme Court of Arkansas

June 6, 1910

Appeal from Pike Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirmed.

W. P Feazel and McMillan & McMillan, for appellant.

A master is liable for the negligence of a vice principal concurring with that of a fellow servant. 88 Ark. 37; 67 Ark 1. Appellant did not assume the risk of the danger. 77 Ark 374; 90 Ark. 228; Id. 567; 89 Ark. 427; 88 Ark. 548; 87 Ark. 321; Id. 396; 79 Ark. 56; 86 Ark. 514. Directing a verdict for defendant was error. 88 Ark. 28; 73 Ark. 560; 71 Ark. 447; 76 Ark. 522; 89 Ark. 534; 89 Ark. 222; Id. 372.

T. D. Wynne, for appellee.

There was no controverted fact to be passed upon by the jury. 41 Ark. 382; Wood on Master and Servant, §§ 326-8 and 335; 57 Ark. 461; Hughes on Inst. 120; 127 Wis. 550; 7 Am. & Eng. Ann. Cas. 457; 58 Ark. 217.

OPINION

FRAUENTHAL, J.

This was an action instituted by G. N. Graham, the plaintiff below, to recover damages for a personal injury which he alleged he sustained while in the employment of the defendants. The defendants, F. E. Thrall and Stephen Shea, were the members of a partnership, which was doing business under the firm name of Thrall & Shea. They were engaged in the construction and equipment of a large sawmill plant, and had employed a number of laborers in doing this work, amongst whom was the plaintiff. One of these laborers permitted a large chain to fall from a considerable height upon plaintiff's hand, injuring his fingers to such an extent that one of them had to be amputated.

Upon the trial of the case, the lower court, after the introduction of all the testimony, directed the jury to return a verdict in favor of the defendants, which was done; and from this action of the court the plaintiff' has appealed. In testing the trial court's action in thus directing a verdict for the defendants we will upon this appeal consider the testimony in its most favorable aspect to the plaintiff. For, in determining, upon appeal to this court, whether or not the trial court was correct in directing a verdict in favor of either party, the rule is to give the testimony in behalf of the party against whom the verdict is directed its strongest probative force in his favor. Neal v. St. Louis, I. M. & S. Ry. Co., 71 Ark. 445, 78 S.W. 220; Rodgers v. C. O. & G. Ry. Co., 76 Ark. 520; Oliver v.Fort Smith Light & Traction Co., 89 Ark. 222, 116 S.W. 204; Jones v. Lewis, 89 Ark. 368, 117 S.W. 561.

Considering the testimony adduced on the trial in this manner, the case, in substance, is this: The plaintiff had been in the employment of the defendants in the construction of the mill plant some time prior to the day of the injury. He was employed as a laborer to carry piping and timbers and to assist in raising the same to the place where they were desired in the building. On the day of the injury he was working with a crew of men who were engaged in raising and adjusting some piping which was necessary for the equipment of the boilers to be used in the operation of the plant. A pile of this piping was placed a short distance from the building, and the men of this crew carried the piping to the boiler, whence it was raised to the place desired. A piping was carried to the boilers by a number of the laborers by means of hand sticks or spikes placed thereunder. It was then raised by tackle blocks by means of a chain which was let down and attached to the piping. It appears that above the boilers were iron girders about four inches in width extending from one side of the building to the other, and sometimes the chain was carried upon these girders from one point to another as it was needed in raising the piping. On this occasion the plaintiff and other members of his crew had carried a piping to the boiler, and the plaintiff had left his hand stick lying thereunder. These men then went to a place on top of the boilers, but were soon directed to go down and get another piping. At this time one of the members of the crew named Sullivan was moving the chain along the girder above the boilers from one end to the other in order to use the chain in raising the piping which had been placed at the foot of the boilers. In going after the second piping the other men went down from the top of the boilers by means of a stairway, but the plaintiff went down between the boilers by means of hand holds and proceeded, as he claimed, to the first piping, which had been laid at the foot of the boilers in order to get his hand stick. This first piping was immediately under the girder upon which Sullivan was moving the chain. The plaintiff testified that Sullivan moved the chain along the girder with his feet while he held to the rafters above him with his hands; and that he saw him thus begin to move the chain as he started down after the hand stick and saw him afterwards move it along the girder. The plaintiff went immediately under this girder to get his hand stick, and while he was in the act of getting it the chain fell from the girder on plaintiff's hand, injuring it as above stated.

In their answer the defendants pleaded, and now contend, that under the uncontroverted testimony in the case the injury which the plaintiff received was due to the risk which was ordinarily incident to the employment in which he was engaged, and which he therefore assumed; and also that plaintiff was himself guilty of negligence which contributed to the cause of the injury. It is well settled that a servant does, in accepting and continuing in the employment, assume all the ordinary and usual hazards incident thereto and also all the risks which he knows to exist. By his contract of service he impliedly agrees to bear the risk of all dangers that are ordinarily incident to the employment, and consequently he can not recover for injuries which result to him therefrom. He thus assumes all obvious risks of the work in which he is employed, including the risk of injury from the manner in which he knowingly sees and observes that the business is being operated and the work done. Southwestern Tel. Co. v. Wonghter, 56 Ark. 206, 19 S.W. 575; St. Louis, I. M. & S. Ry. Co. v. Touhey, 67 Ark. 209, 54 S.W. 577; Archer-Foster Construction Co. v. Vaughn, 79 Ark. 20, 94 S.W. 717; Choctaw, O. & G. Ry. Co. v. Thompson, 82 Ark. 11, 100 S.W. 83; Arkansas Mid. Ry. Co. v. Worden, 90 Ark. 407, 119 S.W. 828; 1 Labatt on Master and Servant, § 259.

It has been usually held that one of the ordinary risks incident to the employment, and one assumed by the servant, is the negligence of a fellow servant. But, whether based upon that ground or from other reasons, the rule of law is well settled that a master is not bound to indemnify one servant for injuries caused by the negligence of a fellow servant. This rule has been modified in this State by the act of the Legislature of March 8, 1907 (Acts 1907, p. 162), when applied to a corporation employing servants; but this act does not affect this rule when the employers, as in the case at bar, are the individual members of a partnership. In the case of Hough v. Texas & Pac. Rd. Co., 100 U.S. 213, 25 L.Ed. 612, the Supreme Court of the United States approves the following rule relative to the exemption from liability of a master for injuries caused by the negligence of a fellow servant, announced by Chief Justice Shaw in Farwell v. Boston & W. Rd. Corp., 45 Mass. 49: "The general rule, resulting from considerations as well of justice as of policy, is that he who engages in the employment of another for the performance of specified duties and services for compensation takes upon himself the natural and ordinary risks and perils incident to the...