Helena Hardwood Lumber Co. v. Maynard

• Decision Date: 29 May 1911
• Citation: 138 S.W. 469,99 Ark. 377
• Parties: HELENA HARDWOOD LUMBER COMPANY v. MAYNARD
• Court: Arkansas Supreme Court

138 S.W. 469

99 Ark. 377

HELENA HARDWOOD LUMBER COMPANY v. MAYNARD

Supreme Court of Arkansas

May 29, 1911

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.

STATEMENT BY THE COURT.

This suit was brought by appellee for damages for the wrongful death of the intestate, her husband, alleged to have been negligently caused by the appellant. It was alleged that at the time of the death of her intestate the defendant was loading logs on cars at Rondo in Lee County with a loading derrick or log loader (describing it) near railroad track. That the clamps on the guy ropes were negligently and unskillfully fastened, permitting the wires to slip through them and allowing the derrick to fall. That on the date her intestate was killed the clamps were readjusted by defendant's foreman and superintendent "in such a negligent, careless and unskillful manner that the guy wire slipped through said clamps, thereby causing said derrick to fall; that at that time T. A. Maynard, plaintiff's intestate, was an employee of defendant, and was ordered by defendant's superintendent to take a position and stand at end of railroad car that was being loaded; and, while plaintiff's intestate was obeying orders and exercising ordinary care himself, the derrick fell on him, crushing his skull and inflicting very painful injuries, from which he suffered great mental and physical pain for a period of 10 hours, resulting in death; that the injury and death of plaintiff's intestate was caused by the careless negligent and unskillful manner in which said clamps were adjusted and placed upon said guy wires." The intestate's age was stated and his earning capacity, and damages in the sum of $ 20,000 for the benefit of the widow and children and of the estate were prayed.

The answer denied that defendant was loading logs with the loading derrick or log loader at the time of the injury alleging that it was using skids and loading logs with a team; admitted that there was a loading derrick at the place but denied that the clamps were readjusted and placed upon the guy wires by defendant's foreman and superintendent in a negligent, careless, reckless or unskillful manner denied that said intestate, T. A. Maynard, was on the day of his death in its employ and engaged in loading logs with a log or loading derrick; denied that he was ordered and directed by the foreman and superintendent to take a position and stand upon the end of the railroad car for the purpose of assisting in loading logs, and that its agents or servants gave him any directions or instructions to do anything in reference to said log loader, other than not to use it, and all other material allegations of the complaint.

"And, further answering paragraph 9, it says that on the day of the 26th of, July, 1909, said loading derrick or log loader was out of repair, was not being used, and plaintiff's intestate was advised and admonished that it could not be used with safety, and that he wilfully and deliberately, against the wishes and without the consent of defendant, insisted upon using said loading derrick, with the full knowledge that the same was not in a condition to be used, for the reason that the guy wires aforesaid were not securely fastened for want of proper implements with which to fasten the same, and that this defendant had ordered said implements from the city of Helena by telephone; that it was not safe or feasible to undertake to use said loading derrick until said guy wires were properly secured by additional clamps; that said intestate was anxious to use said derrick in loading his own logs to be shipped to persons other than the defendant, and for that reason insisted that the loader be tried, assuring the defendant that he was familiar with the use of loading derrick, and that said derrick as it then stood could be safely used in loading logs, and, in order to demonstrate that fact, undertook at his own risk and under the protest of the defendant to use said derrick, with the result that the accident occurred of which the plaintiff complains." It alleged further that the death of Maynard was occasioned by his own contributory negligence; that he had nothing to do with loading defendant's logs with loader or derrick, and was not present as an employee of the defendant at the time.

The testimony tended to show that T. A. Maynard, the deceased, was about 32 years old at the time of his death, with an earning capacity of $ 150 per month, most of which was devoted to the use and benefit of his family, and left him surviving his widow and two children nine and five years of age; that he was an independent contractor, furnishing logs to different lumbering concerns, and that he had delivered some logs to defendant's railroad at Rondo for it, and also had a few logs of his own at this place. On the day of the injury two officials of the Helena Hardwood Lumber Company were upon the ground where the logs were to be loaded, and had come to fix the derrick, and attempted to use it for about an hour that morning in loading logs. One of the guy wires slipped loose, and they stopped, not having enough clamps to go around; that the deceased was upon the yard loading the logs on the cars with teams and negroes after that. The deceased went to the store and telephoned to Helena for more clamps, and they came out on the evening train. Mr. Engle and Mr. Pierce, the officers of the company, were trying to fix the derrick, and the deceased was anxious to get started to loading the logs with the derrick, and all were standing around while it was being fixed. It was getting late.

The testimony then tends to show that, after the clamps were put on, Pierce told Maynard to bring the negroes and mules up and go to work with the loader; that they all went in to take a drink of soda water, and Mr. Engle, the master mechanic of the Lumber Company, said, "Come on back; everything is fixed all right." Engle testified for the defendant that Mr. Harold Pierce was going to put on one more clamp, and Maynard said, "Let's go ahead and load these two cars, and we can fix this. The strain is all on these wires out here" (indicating wires other than the one that slipped). That Maynard was working for himself at the time, and was anxious to get the company's logs loaded that he might get to use the derrick for loading his own logs thereafter; that Maynard assisted in putting on the clamps after they came. They then began loading the logs with the derrick, the deceased standing on the north end of the car that was being loaded at the time of the injury, and Mr. Pierce was also on the car. When the third log was raised, the clamp on one of the wires gave way, the wire slipped through, and the derrick fell, and the wire or pole knocked Maynard off the car, crushing his skull. The clamp that gave way was not on the guy wire where the heavy strain came, nor had it been adjusted that day. It was new and not defective, and the wire pulled through and stripped the threads off it. Maynard lived for some hours, but never spoke after his injury, and the testimony was conflicting as to whether he was conscious and suffered pain. One of the witnesses of plaintiff stated "that he knew T. A. Maynard, and was working on the loading derrick the day he was killed. They used it for a while that morning and quit because they did not have enough clamps. The clamps came on the evening train. Mr. Engle was around there that morning. He called to us, and said he was ready to load the logs with the derrick. He told Maynard to steady the log that was being lifted. Then the derrick fell. Jess Walker and I were handling the ropes. Maynard was working with us. I guess he was hired. After the train came Maynard hollowed to us, and said the clamps had come. At that time they were trying them on. We could see them doing this work."

The court, among others, gave the following instructions:

"No. 1. The law in this case is the law of master and servant. The Helena Hardwood Lumber Company was the master and T. A. Maynard, if working for them at the time of his death, was the servant. The law does not make the master the insurer of the absolute safety of the tools, implements and appliances furnished by the master to the servant, but the law does make it the absolute duty of the master to exercise every reasonable care to furnish the servant with reasonably safe tools, implements and appliances with which to perform his work; and if the master fails to perform his duty to the servant in this respect, such failure is negligence in the eyes of the law, which gives to the servant, if living, and his administrator, if he is dead, a right to sue the master and recover damages for any injury to the servant brought about entirely or in part by such negligence. In this case it is admitted that the log loader was out of repair and unsafe; and if the injury was due solely or in part to the fact that it was out of

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