E. L. Bruce Co. v. Yax

• Decision Date: 17 December 1917
• Docket Number: (No. 46.)
• Citation: 199 S.W. 535
• Parties: E. L. BRUCE CO. v. YAX.
• Court: Arkansas Supreme Court

199 S.W. 535

E. L. BRUCE CO. v. YAX.

(No. 46.)

Supreme Court of Arkansas.

December 17, 1917.

Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge.

Action by R. J. Yax against the E. L. Bruce Company. From a judgment for plaintiff defendant appeals. Judgment reversed, and cause remanded for a new trial.

The appellee, who was near 35 years of age, was employed by the appellant, a corporation, having a hard wood mill and doing business in Arkansas. His duties were to feed flooring into what is known as an American flooring machine. The machine was the best that could be obtained in the hard wood business. Appellee represented to appellant that he had had experience as a machine man, and doing inside finishing work. Appellee stood at a table at the rear of the machine, placed the lumber on the table, and shoved the same towards the machine, which caught it into an automatic feed, and thus the lumber was pulled through the machine. The machine was driven by a main feed belt that ran from the main shaft underneath the mill and drove the entire machinery.

One Sanders was in the employ of appellant as machine man, and it was his duty to look after the machine and see that it was properly operated. The superintendent of appellant told Sanders that he was expected to get 30,000 square feet of flooring through the machine in ten hours. They considered that a normal output, but there was nothing compulsory about it. On the day appellee received his injuries the plant had been shut down about an hour, and Sanders, in order to make up for lost time and to produce, if possible, the average 30,000 square feet, conceived the idea of enlarging the pulley on which the belt that operated the machine worked in order to make the machine run faster. Sanders wrapped an extra belt, about 12 feet long, and about one-fourth of an inch thick, around the pulley, which increased the diameter of the pulley about 2 inches. This would cause the machine at which appellee was working to run faster, and get the lumber through faster. When the belt was wrapped around the pulley it was laced and some brads driven through to hold it in place. The appellee was present and assisting in getting the belt around the pulley. After the pulley was wrapped Sanders instructed appellee to go ahead and feed the machine, which appellee did, and in a few moments the belt slipped off of the pulley and struck appellee in the chest, knocked him down, dragged him under the front end of the machine, and injured him severely. Neither the superintendent nor other managing officers of the appellant had instructed Sanders to increase the size of the pulley in the manner indicated, and they knew nothing about it until after the accident. Sanders did this of his own volition.

The appellee sued the appellant, alleging that his injuries were produced by the negligence of appellant's servants in the manner of wrapping the belt around the pulley, and in negligently operating the pulley when so wrapped at an excessively high rate of speed. The answer denied the negligence, as alleged, and set up affirmatively that the appellee assumed the risk and was guilty of contributory negligence.

The above presents the issues and the salient features of the evidence upon which the cause was sent to a jury under instructions by the trial court, resulting in a verdict and judgment in favor of the appellee in the sum of $2,500, from which this appeal comes. Other facts stated in the opinion.

R. R. Lynn, of Little Rock, and Sherman & Landon, of Kansas City, Mo., for appellant. Rhoton & Helm, of Little Rock, for appellee.

WOOD, J. (after stating the facts as above).

1. The evidence was sufficient to warrant the court in sending the issues of negligence, contributory negligence, and assumed risk to the jury.

2. Appellant's principal contention is that the act of Sanders in wrapping the pulley in the manner alleged and proved was not within the scope of his employment and in the line of his duty at the time, and that therefore, under the uncontradicted evidence, the appellant was not liable, and that the court should have so instructed the jury. This contention of appellant is not sound.

The duty of Sanders was to take charge of the machine, to look after it and see that it was operated right. He was requested by the superintendent to make the machine, which was one of the best of its kind, make an average of 30,000 square feet in a ten hours' run, which was the normal output for such a machine. On the day of the injury over an hour's time had been lost, and Sanders was endeavoring to make up this lost time by enlarging the pulley so as to increase the speed of the machine. Sanders was an experienced machinist, and he was placed in charge of this machine, without any specific directions however as to what he should do to make the machine produce the usual output in case there was any loss of time. No instructions upon that subject were given him one way or the other. No hard and fast rule has been or can be prescribed by which to determine what acts are within the scope of a servant's employment. Each case is governed by its own particular facts, under certain general rules of law.

Cooley says:

"Where a servant acts without reference to the service for which he is employed, and not for the purpose of performing the work of the employer, but to effect some independent purpose of his own, the master is not responsible for either the acts or omissions of the servant." Cooley on Torts, 1032; 26 Cyc. 1536.

Conversely, when the servant acts with reference to the services for which he is employed and for the purpose of performing the work of his employer, and not for any independent purpose of his own, but purely for the benefit of his master, it is generally held, under such circumstances, that the acts so done are within the scope of the servant's employment.

In Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 402, 125 S. W. 439, 441 (27 L. R. A. [N. S.] 124), we said:

"The act of the servant for which the master is liable must pertain to something that is incident to the employment for which he is hired, and which it is his duty to perform, or be for the benefit of the master. It is therefore necessary to see in each particular case what was the object, purpose, and end of the employment, and what was the object and purpose of the servant in doing the act complained of. The mere fact that he was in the service generally of the master or that the servant was in possession of facilities afforded by the master in the use of which the injury was done would not make the act attributable to the master. The act must have been done in the execution of the service for which he was engaged."

See, also, Tillar v. Reynolds, 96 Ark. 358, 131 S. W. 969, 30 L. R. A. (N. S.) 1043; Arkansas Natural Gas Co. v. Lee, 115 Ark. 288, 171 S. W. 93, L. R. A. 1916C, 1200. See, also, the well-considered case of Marlowe v. Bland, 154 N. C. 140, 69 S. E. 752, 47 L. R. A. (N. S.) 1116.

Now, applying these general principles to the facts of this record, it was an issue for the jury to determine as to whether or not the acts of Sanders in wrapping the pulley were within the scope of his employment. The court did not err in refusing to take this issue from the jury, and did not err in refusing to grant appellant's prayer for instruction No. 2 on this issue. (Reporter set forth instruction in note).¹ This prayer was argumentative, abstract, and calculated to mislead the jury, because, even though appellee may have acted without the instruction or knowledge of the defendant and wholly of his own accord, he might still be acting within the scope of his employment, provided the act was done for the benefit of the master and in the line of appellee's duty to operate the machine so as to produce, if possible under the circumstances, the quantity of finished flooring that the appellant's superintendent had requested in the day's run of ten hours.

In determining the issue of whether or not the appellee was acting within the scope of his employment, it was proper for the jury to consider the testimony on behalf of the appellant tending to show that the appellee, in wrapping the pulley, was acting without the instructions or knowledge of the appellant, but this is as far as the instruction should have gone. It was still for the jury to decide, after considering such testimony in connection with the other facts, as to whether or not the appellee was acting within the scope of his employment.

3. At the request of the appellee the court granted the following prayer for instruction:

"You are instructed that plaintiff assumed all the risks and hazards ordinarily and usually incident to his employment, and that he will be presumed to have contracted with reference to such risks and hazards, if known and appreciated by him. He will be presumed to have assumed the risks incident to all dangers and defects which were apparent and obvious, if any. If he knew and appreciated the danger of the conditions complained of in this case, and you find such was a usual and ordinary risk, you must find for the defendant. But if you find the danger complained of was not an ordinary and usual risk incident to his employment, and plaintiff continued to work, knowing and appreciating the danger, he was guilty of contributory negligence."

This suit was instituted under our statute commonly known as the Employers' Liability Act (Act 175, Acts 1913, p. 734). The first section of the act provides, in substance, that every corporation, except while engaged in interstate commerce, shall be liable to its employés for personal injuries sustained by them resulting in whole or in part from the negligence of the corporation or any of its officers, agents, or employés.

Neither contributory negligence nor assumption of risk is a defense under the statute where the corporation by violating...