Holmes v. Bluff City Lumber Co.

• Decision Date: 02 January 1911
• Citation: 133 S.W. 819
• Parties: HOLMES v. BLUFF CITY LUMBER CO.
• Court: Arkansas Supreme Court

133 S.W. 819

HOLMES v. BLUFF CITY LUMBER CO.

Supreme Court of Arkansas.

January 2, 1911.

Appeal from Circuit Court, Jefferson County; Antonio B. Grace, Judge.

Action by George Holmes against the Bluff City Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

George Holmes, a boy about 15½ years of age, was at work for appellee, at its saw and planing mill, cleaning out sawdust from under a resaw. The sawdust was about a foot deep. Holmes used a rake to clean up the dust around the machine, but the dust underneath could not be cleaned out with a rake. A blowpipe was adjusted that came down close to the floor for the purpose of drawing up the dust. When the blowpipe was stopped up with dust, to get the dust out so that it would work one would have to put his hand in to unchoke it. The mouth of the pipe was not directly under, but a little to one side of the resaw. From a point directly under the resaw to the pipe was somewhere from 12 to 16 inches. Holmes had cleaned the pipe out once or twice before and was not hurt. The resaw was about 18 inches from the floor. Holmes was cleaning out the blow or suction pipe with his hand. When his hand was in the pipe, the resaw was about 8 or 10 inches from his elbow, but Holmes let his elbow come in contact with the resaw and it almost severed his arm. At the time, he was doing the work he was directed to do. The resaw had no hood over it. If it had been hooded the accident would not have happened. When Holmes cleaned the pipe out before, he put his hand in the pipe in the same manner. He was not shown how to clean out the pipe; "had seen the other fellows cleaning theirs out with their hands." He knew how to start and stop the machine, because he had done so. If the machine had been stopped there was nothing about the pipe to hurt Holmes, but he was not running the saw. Any one who was running the resaw had the right to start and stop it. Holmes had been working around the mill three days before he was injured, but had not cleaned out the blow pipes before that day.

There was no difference in the saw and the surroundings of the machine at the time he was injured and the time he had cleaned it out before. Holmes said "if he had been" careful to avoid coming in contact with the saw he supposed he could have cleaned out the pipe without coming in contact with the saw. He further said he "was not given any warning that day touching the dangers to which he would be exposed." The foreman told him "not to run into any of the saws or he would get cut," but he "was not warned about the particular place where he was cleaning out the sawdust." The foreman "was sort of laughing and joking, and he says, `Don't run against any of the saws, or you will get cut.'" Holmes further testified that he knew that before the foreman told him. He knew if he put his hand on the saw or got against it in any way whatever that he would get cut, but he did not know the saw was running; couldn't see it. Before he went there to clean out he could see it, but not when he got down to clean it out. He knew exactly how near it was to the blowpipe. The foreman who employed Holmes testified in part as follows: "At the time I hired him [Holmes] I do not think I spoke to him anything by the way of cautioning against the danger incident to his employment; but after he went to work I remember telling him once that any of those things around there would hurt him if he got into them, and that is about all the warning I ever gave any one. This I told him the first day he worked in the morning. I just told him if he got into them they would hurt him. I thought George was an extra bright boy, and would say that he was of such intelligence as to be able to appreciate what I told him. At the time he was hurt he was cleaning up around the resaw. The boy was under my direct supervision. I did not think the saw was in a dangerous condition. I consider any saw dangerous as to that. I did not know the exact age of the boy, but thought he was about 17 or 18 years old. I know now his age to be 16½ year old. That is what his father told me. I never warned this boy with reference to this particular resaw. Not even when I saw him working underneath the saw prior to the accident." Holmes, by his next friend, sued appellee to recover damages for his injury. He alleged negligence in not "furnishing him a reasonably safe place to perform his work," and in "not warning him of the danger to which he was then exposed." Appellee denied all the material allegations, and set up in defense contributory negligence on the part of Holmes. The facts are substantially as set out above.

Holmes offered to show that the saw by which he was injured ought in the exercise of ordinary care on defendant's part to have been covered with a hood. The court refused to allow such testimony. Holmes asked the court to declare the law as follows:

"The court instructs the jury that if they believe from the evidence that defendant employed the plaintiff, George Holmes, a minor, and put him to work about dangerous machinery, then it was the duty of the defendant to furnish plaintiff a reasonably safe place to perform his work, and if among the duties of plaintiff it was to clean out for defendant sawdust and shavings from under a resaw which has no protection about it to prevent plaintiff from being cut or killed, then the jury may consider from the facts and circumstances in the case whether such place was a dangerous one.

"And if the jury believes from the evidence that plaintiff, George Holmes, was young and inexperienced as to such machinery, and did not know or appreciate the danger of his employment on account of his youth and inexperience, and that if defendant knew or ought to have known of such danger to plaintiff, if such be a fact, or might have known of such danger to him by the exercise of ordinary care on its part, then it was the duty of defendant to instruct the plaintiff as to the dangers surrounding him so that as far as might be by proper care, plaintiff would be enabled to perform his duty in safety to himself. If the defendant failed to properly discharge any of these duties to plaintiff in so far as they are covered by the allegations of negligence in this case, and if, by reason of such neglect or failure of defendant, plaintiff received the injuries of which he complains while using due care for himself, and in the line of his duties, then defendant is liable to him in this action.

"And the court further tells you that defendant would be liable in this action to plaintiff if you believe from the evidence that plaintiff, while engaged at work for defendant, was not given a reasonably safe place in which to perform his work, but was exposed by reason of such place of being killed or of receiving great bodily injury, and that at the time he, the plaintiff, was too young and inexperienced to understand and appreciate the danger to which he was exposed, even though defendant had warned him of such danger or dangers attending the place where he was put to work. As to whether the plaintiff was able to understand and appreciate the danger to which he was exposed while working under and about the resaw which injured him, the jury will take into consideration the age of the plaintiff at the time of the injury, his intelligence and experience and knowledge of dangerous machinery at the time.

"2. The court tells the jury that it was the duty of defendant in employing the plaintiff, who was then and there a minor, and inexperienced as to machinery, to warn him specifically as to the dangers surrounding him, if any, from being hurt or injured while engaged at work for it from any particular machinery where he was placed at work by defendant."

The court refused the request. The court gave correct instructions on assumed risk, the burden of proof, negligence and contributory negligence, and the measure of damages. It is unnecessary to set them out. Among others the court gave the following:

"A3. When the servant by reason of his youth or inexperience is not aware of, or does not appreciate the danger incident to the work he is employed to do, or the place he is engaged to occupy, he does not assume the risks of his employment until the master apprises him of the danger. It is the duty of the master to first give him such instruction and caution as would, in the judgment of...