King-Ryder Lumber Company v. Cochran

• Decision Date: 15 November 1902
• Citation: 70 S.W. 606,71 Ark. 55
• Parties: KING-RYDER LUMBER COMPANY v. COCHRAN
• Court: Arkansas Supreme Court

70 S.W. 606

71 Ark. 55

KING-RYDER LUMBER COMPANY v. COCHRAN

Supreme Court of Arkansas

November 15, 1902

Appeal from Sevier Circuit Court, WILL P. FEAZEL, Judge.

Affirmed.

STATEMENT BY THE COURT.

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 saw mill, by which injury he lost his thumb and a part of three fingers. From this judgment the mill company appealed to this court. It alleges many errors in instructions given by the court, and errors by the court in refusing instructions asked by them; many of which we do not discuss. The appellants also contend 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, and 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.

Judgment affirmed.

Hill & Brizzolara, for appellant.

The measure of a child's responsibility is his capacity to see and appreciate danger, and he is held to such measure of discretion as is usual in one of his age and experience. 88 Pa.St. 35; 144 Pa.St. 357; 1 Shear. & Redf. Neg. § 218 (5th Ed.); 139 N.Y. 459; 56 Ark. 232. A servant cannot recover from his master for an injury which the servant by reasonable care could have avoided. 59 Ark. 479; 66 Ark. 237. Appellee assumed the risks incident to the employment. 56 Ark. 237; 68 Ark. 319; 94 F. 73; 170 U.S. 655, Law. Ed. 1188; 56 Ark. 232.

Collins & Lake and Shaver & Norwood, for appellee.

The verdict of the jury is conclusive as to the weight of evidence. 25 Ark. 474; 31 Ark. 163; 51 Ark. 467; 57 Ark. 577. Where there is a conflict in the evidence, this court will not disturb the verdict. 25 Ark. 452; 46 Ark. 524; 47 Ark 196; 50 Ark. 511; 67 Ark. 531. The verdict should not be disturbed where the evidence against it preponderates. 13 Ark. 309; 14 Ark. 419; 18 Ark. 498; 26 Ark. 360; 22 Ark. 50; 25 Ark. 11; 56 Ark. 232; 53 Ark. 117.

HUGHES, J. BUNN C. J., dissents.

OPINION

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, and 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 assumtion of the risk attending its operation, unless the danger was so patent that no person of ordinary prudence would have continued to operate it without assuming the risk. We think, therefore, that the risk of operating it under the circumstances was not an assumed risk.

Objection is urged to the giving by the court of the second instruction for the plaintiff, which reads: "Second. The court instructs the jury that if they believe from the preponderance of the evidence that plaintiff was young and inexperienced, and ignorant of the condition of the machine and the apparent condition of the same was such as was likely to lead the plaintiff, on account of his youth and inexperience and lack of knowledge, to undertake and operate the machine in the way he did, and the dangers of operating it in the way he did were unknown and not apparent to him on account of such youth,...