Headrick v. H. D. Cooperage Co.

• Decision Date: 13 February 1911
• Parties: HEADRICK v. H. D. COOPERAGE COMPANY
• Court: Arkansas Supreme Court

134 S.W. 957

97 Ark. 553

HEADRICK v. H. D. COOPERAGE COMPANY

Supreme Court of Arkansas

February 13, 1911

Appeal from Independence Circuit Court; Charles Coffin, Judge reversed.

Reversed and remanded.

Oldfield & Cole, for appellant.

1. The situation disclosed by the evidence was one from which different minds could reasonably draw different conclusions as to whether or not the appellant was guilty of negligence. That question should therefore have been submitted to the jury. 92 Ark. 582; Id. 554, 560.

2. This case falls within the exception to the rule of assumed risk in this: If the servant complains to the master or his representative, and receives a promise that the defect or danger complained of will be remedied, he will be excused by law for remaining in the service a reasonable time threeafter, and will not be deemed to have assumed the risk. 90 Ark. 555, 565; 88 Ark. 28, 34; 4 Thompson on Neg. § 4667; Id. § 4882.

Gaughan & Sifford and McCaleb & Reeder, for appellee.

1. It is impossible for this court to obtain from the record before it a true conception of the evidence before the court and jury below. Much of the evidence was in the nature of pantomime, stepping about from place to place, acting before the court and jury, and pointing out objects and positions on the floor, etc. More than all the rest of this pantomime evidence was that with reference to a plat or diagram exhibited to the court and jury, which has not been preserved in the record, and which, if it had been, would be valueless to this court without the witness to illustrate it, as he did in the court below. The presumption must necessarily be in favor of the verdict 2 Ark. 33; 5 Ark. 309; 8 Ark. 429; 24 Ark. 602; 22 Ark. 79; 25 Ark. 334; 14 Ark. 298; 37 Ark. 57; 17 Ark. 327; 40 Ark. 185; 46 Ark. 67; 27 Ark. 395; 26 Ark 653; 45 Ark. 240; 43 Ark. 451; 54 Ark. 159; 55 Ark. 126; 67 Ark. 464; 72 Ark. 21.

2. Assuming it to be true that appellant made complaint on the evening before the accident, and that promise was made to remedy the defect, nevertheless the employer did not assume the risk of the employees negligence, neither would such promise excuse the negligence of the employee, nor justify recklessness or carelessness on his part. 90 Ark. 555, 567. If, therefore, appellant was injured, the burden is upon him to show additional negligence on the part of the appellee, and, until he does so, the only conclusion that can be reasonably reached is that he was guilty of contributory negligence. When a danger is obvious or known, a person is bound to use ordinary care to avoid it; not only so, but where two ways are open to a person to use, one safe and the other dangerous, the choice of the dangerous way with knowledge of the danger, constitutes contributory negligence. 29 Cyc. 515, notes 99, 1; 135 Pa, St. 217; 58 N.Y.S. 628; 48 N.Y.S. 323; 47 Id. 783; 100 Iowa 672; 47 S.W. 759; 79 Me. 456; 105 Mich. 547. When the undisputed evidence shows that one suing for personal injuries was guilty of contributory negligence, it is the duty of the court to declare that he has no cause of action. 76 Ark. 10. The promise to repair does not excuse contributory negligence, but the servant must nevertheless exercise due care to protect himself against injury. 90 Ark. 555; 117 U.S. 661; 61 C. C. A. 447; 79 C. C. A. 368; 159 F. 680.

OPINION

MCCULLOCH, C. J.

Defendant, while operating a stave mill in Stone County, Arkansas, employed plaintiff to work at the equalizer saws. He received personal injuries while in the discharge of his duties, and sues his employer for damages, alleging negligence on the part of his foreman in failing to box the equalizer saws and to keep the hole underneath the saws free from sawdust and blocks.

Defendant in its answer denied negligence, and pleaded contributory negligence on the part of plaintiff, and also assumption by him of the risk. The trial court, after plaintiff had concluded his testimony, gave a peremptory instruction in favor of defendant, and judgment was accordingly entered against plaintiff.

We must therefore, in testing the correctness of the court's ruling, give the testimony its strongest probative force, to determine whether or not it is legally sufficient to sustain a verdict in plaintiff's favor. His injury occurred August 23, 1906. Plaintiff's work, as before stated, was at the equalizer saws, so as to make the stave bolts of equal lengths; and it was also a part of his work to go to the rear of the table and check or steady the barrel saw and strike the teeth of that saw at certain intervals. He worked under the immediate supervision of Shaver, the foreman, who was the defendant's vice-principal.

There were egg-shaped holes under the equalizer saws, about two feet long and eighteen inches wide, to receive the sawdust and blocks from the saws. It was the duty of Arnold, another workman, to keep the holes clear of accumulated sawdust and blocks. When the holes were full, it was difficult to discern them, as there was also an accumulation of sawdust on the floor, so that the edges of the holes could not be seen.

About two feet to the left of the equalizer saws there was a table or bench on which the bolts were laid after being equalized, and the barrel saw was about ten inches to the left of this table.

The afternoon before the injury occurred the plaintiff complained to Shaver that the saws should be boxed, and that the holes should be cleaned out so as to make the place about the saws safe. Shaver promised to see that this was done, and asked plaintiff to continue work. The exact language in which the promise of the foreman was couched is, as testified to by plaintiff, as follows: "Headrick, if you will work on I will box the holes up, and I will see that John Arnold keeps the dust out of the holes. I can't hardly run without you. If you quit, I will have to stop until I get another hand." No time was specified when the promise should be complied with. Shaver did not box the saws, and did not have the holes cleaned out as promised.

The next day after the promise was made, plaintiff, in passing between the saws and the table in order to get to the barrel saw to steady it as he was commanded to do, stepped on the edge of the hole, his foot slipped in and was struck by one of the saws. Shaver was standing at the barrel saw and signaled plaintiff to go to that saw and steady it. Plaintiff testified that the holes were full, and that he could not see the edges on account of the sawdust. He also testified that there was not sufficient room to permit him to pass between the table and the barrel saw, and that it was not practical to go around the barrel saw so as to avoid going between the table and the equalizer saws.

It is insisted by counsel for defendant in the first place that the bill of exceptions does not contain all the testimony, and that for this reason the judgment should be affirmed. The only omission suggested is a diagram concerning which plaintiff testified. This was not formally introduced in evidence, but it appears to have been produced by counsel for defendant and, while testifying in response to questions, the plaintiff indicated his explanations by pointing to the diagram and referring to it. The...