King-Ryder Lumber Co. v. Cochran
| Decision Date | 15 November 1902 |
| Citation | 70 S.W. 606 |
| Parties | KING-RYDER LUMBER CO. v. COCHRAN. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Sevier county; Will P. Feazel, Judge.
Action by one Cochran against the King-Ryder Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.
The appellee, by his next friend, recovered a judgment against the appellant for $2,000 for damages he sustained, while working for appellant, in running an edger in appellant's sawmill, by which injury he lost his thumb and a part of three fingers. From this judgment the mill company appealed to this court, alleging, among others, errors in instructions given by the court, and errors by the court in refusing instructions asked by it, many of which we do not discuss. The appellant also contends that the evidence does not support the verdict. The evidence shows that the appellee, at the time he was employed and at the time he was put to work at the edger, was about the age of 18 years, of fair, ordinary intelligence, and tends to show that he was inexperienced at such work; that the foreman, who employed him, and put him to work at the edger, did not give him the instructions necessary to an understanding and appreciation of the dangers incident to running that kind of a machine. There was evidence tending to show that the saw of the edger was cracked, that it was in bad repair, and that appellant had been informed that it was out of order, and had given orders to the foreman to have it run if they did not put out more than one plank a day; that it was dangerous to run it in that condition; that appellee had run that edger some time before for about a month and a half; that on the morning of the injury, after the appellee had run the edger a short time, he discovered there was something wrong with it, — that it would not saw a straight line, — and that he told the foreman of it, who thereupon told him that it was out of fix, but to go and run it till noon, when he would have it repaired; that he returned, and began to run it, and a short time thereafter received the injury of which he complains.
Hill & Brizzolara, for appellant. Collins & Lake and Shaver & Norwood, for appellee.
HUGHES, J. (after stating the facts).
It is contended that the appellee, Ned Cochran, by continuing to operate the edger after he had discovered that it was not in order, assumed the risk incident to its operation. But it must be remembered that when he discovered its condition he promptly reported to the foreman that it was not in proper condition, that it would not saw a straight line, and that thereupon the foreman told him that it was out of order, but to go and run it until noon, and that he would have it repaired, whereupon he continued to run it, obeying the direction given him. By reporting its condition to the foreman, if he appreciated the danger of operating it in its then condition, he manifested his unwillingness to assume the risk of its operation in that condition, and by the direction of the foreman he was relieved of the assumption of the risk attending its operation, unless the...
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