Jones v. Malvern Lumber Co.

• Decision Date: 21 October 1893
• Citation: 23 S.W. 679,58 Ark. 125
• Parties: JONES v. MALVERN LUMBER CO
• Court: Arkansas Supreme Court

23 S.W. 679

58 Ark. 125

JONES v. MALVERN LUMBER CO

Supreme Court of Arkansas

October 21, 1893

Appeal from Hot Spring Circuit Court, ALEXANDER M. DUFFIE, Judge.

Reversed and remanded.

Wood & Henderson for appellant.

1. The court erred in its ruling on questions of evidence. Wilbert was the representative of the company, and his declarations indicative of knowledge of the danger and unsafe condition of the boiler, should have been allowed to have been proved. 4 West. Rep. 641; 6 Am. Dec. 267; 1 Am. & Eng. Enc. of Law 419, note 2; 105 U.S. 263; 37 Ark. 47.

2. It was admissible to show negligence at the time of the injury which contributed thereto. 48 Ark. 473; 1 Greenl. Ev. sec 51-2; Ib. 448.

3. Dangers arising from defects which might have been discovered by the master are not risks assumed by the servant as incident to his employment. 48 Ark. 347; Wood, Mast. & S. pp. 749, 713, 757-8.

4. The fourth instruction for appellee was erroneous. The word "satisfied" was not proper. Besides, it told the jury they could not find for appellant unless satisfied that he was free from contributory negligence, thus putting the burden on appellant, when it was on the company. 48 Ark. 475; ib. 348; 46 id. 182; ib. 436.

5. The sixth for appellee was wrong. The master's duty did not end with the employment of a competent and skilfull foreman and boiler-maker. It could not delegate master's duties so as to free it from responsibility, if the foreman or boiler-maker was negligent. They were not fellow-servants with appellant. McKinney, Fellow-Servants, 54, 56, 64-5, 87 to 88; Beach, Cont. Neg. 351, note; 4 Am. & E. Enc. Law, 58-9, note 1 on p. 62-3; 48 Ark. 333.

6. It was the duty of the company to have the boiler properly tested. 110 Mass. 240; 109 Penn. 296; 80 N.Y. 46; 54 Ark. 289.

N. P. Richmond and Sanders & Walkins for appellees.

1. The declarations of Wilbert not admissible. He was a mere laborer, and no authority was delegated to him except to patch the boiler. Mech. Ag. sec. 714; 1 Gr. Ev. secs. 113, 114. But Wilbert testified, and appellant got the benefit of his testimony anyhow.

2. The evidence of Ryan as to the tests used on the Hot Springs Railroad was not prejudicial. It was in contradiction of the evidence in chief and permissible. The other objections are purely technical, and in no wise prejudiced appellant.

3. The second instruction is the same as that asked by plaintiff in his sixth and seventh, and is laid down as the law by all text writers. Wood, M. & S. secs. 336-7, 372, 377. "An employee, having opportunity to know of danger and risk, is presumed to know of such danger; and if he does not inform himself of such danger, he cannot recover." 41 Ark. 549; 48 id. 347.

4. The fourth did not cast the burden on plaintiff as to contributory negligence.

5. The sixth is supported by 46 Ark. 566; 35 id. 602; 44 id. 529.

6. All that was legal and asked in the twelfth and thirteenth was embraced in the eleven already given.

OPINION

MANSFIELD, J.

This was an action to recover damages for a personal injury received by the appellant while he was running an engine for the appellee on a tramway used for carrying logs to its lumber mill. The injury was inflicted by the explosion of the engine's boiler, and the complaint alleged that the explosion re-suited from the appellee's negligence in using a defective boiler. This allegation was denied by the answer, which charged that the explosion was caused by the appellant's own negligence.

A short time before the accident the boiler was repaired by Joseph Wilbert, a machinist, who was not in the appellee's service, but was sent by his employers at the appellee's request to do the work, and performed it under the direction of W. B. Lovell, the lumber company's master-mechanic. On the trial Wilbert was sworn as a witness for the appellant, and testified that, at the time he repaired the boiler, he declared it unsafe. Subsequently the appellant called John Smith by whom he offered to prove that he heard Wilbert make the declaration referred to, but the court excluded Smith's testimony. The ruling was not prejudicial to the appellant, for the reason that the evidence it excluded related to a fact already before the jury in the testimony of Wilbert himself, whose statement that he made the declaration at the time fixed by Smith was uncontradicted.

It was shown that the only tests of the boiler's strength, made after it was repaired, were made by sounding its rivets and braces with a hammer, and by the pressure of stream raised for that purpose; and testimony was adduced by the plaintiff to prove that the "hammer test" was not effective, and was not the test usually applied. In rebuttal the defendant introduced J. A. Bratt, a person engaged in the milling business, and asked him what tests the mill men of the vicinity generally applied to the steam boilers used in their business. The question was objected to, but the court permitted the witness to answer, and he stated that the "hammer test was the one usually applied, so far as he knew." The defendant's duty to its servants did not require it to resort to unusual or impracticable tests; and we think the question was proper, as eliciting evidence tending to show that one of the tests applied by the company's master-mechanic was that usually employed by persons engaged in operating similar machinery. L. & N. R. Co. v. Allen, 78 Ala. 494; Grand Rapids etc. R. Co. v. Huntley, 38 Mich. 537. If the answer was regarded as objectionable on the ground that it did not disclose the extent of the witness' knowledge of the subject, the plaintiff should have moved to exclude it or insisted upon a more definite statement.

But the court erred in permitting Ryan to testify that the "hammer test" was used by the Hot Springs Railroad Company; for the practice of a single company had no tendency to prove the usual and customary test.

So also the testimony of Lovell as to acts of negligence committed by the plaintiff in running the engine prior to the day of the explosion was improperly admitted. The witness did not state when the acts occurred, and it does not otherwise appear that they had any relevancy to either of the questions which the jury had to decide. L. R. & F. S. Ry. v. Eubanks, 48 Ark. 460. It is submitted that they were competent because they contradicted a statement previously made by the plaintiff as a witness in his own behalf. But that statement was itself made with reference to a matter entirely immaterial, and the plaintiff could not be impeached by its contradiction. Billings v. State, 52 Ark. 303, 12 S.W. 574.

There was, however, other and competent evidence amply sufficient to prove the facts to which the evidence thus improperly admitted was directed, and the errors of the court in receiving the latter would not, of themselves, justify us in disturbing the verdict. Owen v. Jones, 14 Ark. 502; Sharp v. Johnson, 22 Ark. 79; Greer v. Laws, 56 Ark. 37, 18 S.W. 1038.

One of the assignments made in the motion for a new...