Harmon v. Harrison

• Decision Date: 17 February 1941
• Docket Number: 4-6209
• Citation: 147 S.W.2d 739,201 Ark. 988
• Parties: HARMON v. HARRISON
• Court: Arkansas Supreme Court

147 S.W.2d 739

201 Ark. 988

HARMON v. HARRISON

4-6209

Supreme Court of Arkansas

February 17, 1941

Appeal from Logan Circuit Court, Southern District; J. O. Kincannon Judge; affirmed.

Judgment affirmed.

Paul E Gutensohn and Warner & Warner, for appellant.

Williams & Williams, for appellee.

OPINION

HOLT, J.

Appellee sued to recover $ 3,000 damages alleged to have resulted when coming in contact with wet concrete, while employed by appellant.

The averments of specific acts of negligence in appellee's complaint are that (1) appellant was negligent in failing to warn appellee who was inexperienced in such matters of the danger of cement burns; (2) in failing to provide the appellee with safe and suitable coverings for his feet and legs to protect them from injury from cement and concrete burns; and (3) in furnishing unsanitary rubber boots and requiring appellee to wear them, when the boots were disease carriers and caused the appellee's feet and legs to become diseased.

Appellant answered denying every material allegation in the complaint, and in addition pleaded contributory negligence, assumption of risk and a release signed by appellee.

There was a trial and verdict in appellee's favor in the amount of $ 500, and from a judgment entered comes this appeal.

Appellant urges here the following alleged errors: "1. No actionable negligence in failing to warn plaintiff of danger, or in failing to provide safe and suitable coverings for his feet, or in failing to provide a reasonably safe place in which to work was proved. 2. Plaintiff assumed the risk and was not entitled to recover. 3. The plaintiff was guilty of contributory negligence and was not entitled to recover. 4. Plaintiff executed a binding release and was not entitled to recover. 5. The court erred in giving plaintiff's requested instructions over defendant's objection and exceptions. 6. The verdict is based on speculation and conjecture and is excessive."

We shall review these assignments in their order.

1.

The record reflects that appellee, 21 years of age, was employed by appellant, and at the time of his alleged injuries was working under the direct supervision and orders of Jess Short, appellant's foreman. On orders from Short, appellee, after having first put on a pair of rubber boots which he procured from a supply in appellant's supply house, got down into a pit about four feet square, approximately five feet deep, partly filled with wet concrete, for the purpose of "puddling" or spreading the concrete by shoving it about with his feet with the aid of a pole. It was his duty to keep the concrete spread until it was poured to a designated level. While thus engaged, wet concrete "sloshed" over his boot tops and into his boots, burning and scalding his feet and legs. Wet concrete would also get into his boots when it was poured into the pit from the wheelbarrows in which it was carried by other employees.

Appellee had never before worked in wet concrete, in the manner in which he was engaged when injured. Appellant did not warn him that the wet concrete would scald, burn or injure him and appellee testified: "Q. Have you ever worked in wet concrete before? A. No, sir. Q. Prior to working for Harmon did you know there was danger from being burned by wet concrete? A. No, sir. . . . Q. You were asked by counsel for the defense if you knew they were concrete burns at the first time you reported this to Jess Short, did you know concrete would burn? A. No, sir, I didn't know concrete would burn. . . . Q. But you had never had any direct contact with wet concrete and didn't know it would burn? A. No, sir. . . . Q. Did he (meaning Jess Short, foreman) furnish you any equipment or did he warn you of the danger of wet cement? A. No, sir. Q. What did he say about that? A. Nothing. Q. What did he say when he put you to work? A. He just told me to get a shovel and told me what to do. . . . Q. And they didn't warn you about the danger of wet concrete? A. No, sir. . . . Q. Was there any warning given to you relative to the danger of cement burns? A. No, sir. . . . Q. Did they furnish you any socks or any covering to go over your feet? A. No, sir. . . . Q. How deep did you say the concrete was at that particular place? A. At that place I couldn't say in inches but I know it was over the top of my boots. . . . Q. State whether or not the concrete, when it was being poured in there, got in your boots. A. Yes, sir."

From this evidence it appears that appellee was inexperienced in the work assigned to him. In fact, this was the first time he had ever attempted to work wading in wet concrete in the manner disclosed here. He was not aware of the danger attending such work nor did appellant give him any warning. Appellant's knowledge of these dangers was superior to that of appellee.

We think it was for the jury to say whether appellant was negligent in failing to warn appellee about any latent dangers connected with the work that appellant's foreman had directed appellee to perform and whether this failure to warn was the proximate cause of appellee's injuries. We cannot say as a matter of law that these dangers were obvious and patent to an inexperienced employee, such as the evidence in the instant case tended to show that appellee was. The jury has resolved this question in favor of appellee on substantial testimony, and we do not disturb that finding here.

In Kurn v. Faubus, 191 Ark. 232, 84 S.W.2d 602, the rule is announced as follows: "The law is that where the perils of the employment are known to the master but unknown to the employee, the master has the duty of apprising the employee thereof, and a neglect by the master of such duty creates actionable negligence; but where the employee's knowledge of the perils of the employment equals or surpasses that of the master, then there is no duty upon the master to apprise the employee of something already well known to him. . . .

"In 18 R. C. L. 548, § 62, the rule is tersely stated as follows: 'Knowledge, then, or opportunity by the exercise of reasonable diligence to acquire knowledge, of the peril which subsequently results in injury to the employee is the foundation of the liability of the employer. Liability exists when the perils of the employment are known to the employer but not to the employee; and no liability is incurred when the employee's knowledge equals or surpasses that of the employer'."

2.

Appellant urges under its second assignment that appellee assumed the risk and cannot recover. We do not think so, for the jury found, under proper instructions, that appellee was inexperienced and did not appreciate the dangers and hazards incident to working in wet concrete. He could not assume risks about which he did not know and which were not obvious to him.

3.

Nor can we agree with appellant that appellee was guilty of contributory negligence. We think there is substantial evidence in the record to support the jury's finding that appellant was negligent in exposing appellee to the dangers incident to working in wet concrete without cautioning or warning him.

4.

It is next contended that appellee executed a binding...