E. L. Bruce Co. v. Yax

• Decision Date: 17 December 1917
• Docket Number: 46
• Citation: 199 S.W. 535,135 Ark. 480
• Parties: E. L. BRUCE COMPANY v. YAX
• Court: Arkansas Supreme Court

199 S.W. 535

135 Ark. 480

E. L. BRUCE COMPANY v. YAX

No. 46

Supreme Court of Arkansas

December 17, 1917

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; reversed.

STATEMENT OF FACTS.

The appellee who was near 35 years of age, was employed by the appellant, a corporation, having a hardwood 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 hardwood 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 twelve feet long, and about one-fourth of an inch thick around the pulley, which increased the diameter of the pulley about two 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, knocking 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.

Judgment reversed and cause remanded.

Sherman & Landon and Roscoe R. Lynn, for appellant.

1. The court erred in refusing to direct a verdict for defendant and in refusing to give instruction No. 1 requested. Kirby's Digest, § 5482; 10 Bing. 385; 26 S.W. 360; 24 L. R. A. 363; 86 S.W. 503; 144 P. 63; 13 S.W. 1042; 138 P. 621; 47 L. R. A. (N. S.) 1116; Labatt on Master & S., §§ 1642-4; 85 Ark. 600; 93 Id. 397; 86 Mo.App. 601; 193 Mo. 299, etc.

2. It was error to refuse No. 2 requested by appellant. Cases supra; 26 Cyc. 1526; 29 Id. 1533.

3. It was error to give No. 8 for plaintiff. And the court erred in giving and refusing instructions on the defense of assumption of risk by appellee. 233 U.S. 492; 155 S.W. 638; 43 Ark. 88; 105 Id. 533; 96 Id. 387; 95 Id. 560-562-3; 77 Id. 367; 89 Id. 424; 220 Ill. 522; 77 N.E. 147; 4 L. R. A. (N. S.) 848.

4. The court improperly charged the jury as to matters required to be proven by appellee to entitle him to recover and assumption of risk. Cases supra.

Rhoton & Helm, for appellee; Gardner K. Oliphint, on the brief.

1. Sanders was acting within the scope of his authority in wrapping the pulley. 96 Ark. 358; 93 Id. 397.

2. There was no error in giving or refusing instructions. 98 Ark. 227; 122 Id. 232; 124 Id. 597; 98 Ark. 218; 93 Id. 573.

3. The instructions as to assumed risk and contributory negligence were not error. 77 Ark. 367; 90 Id. 567; 83 Id. 567; 88 Id. 243; 18 L. R. A. (N. S.) 698; 196 S.W. 439; 1 Thompson on Negl. (2d ed.) § 180; 67 Ark. 209; 146 Pa.St. 67; 187 S.W. 177; 88 Ark. 258; 112 S.W. 985; 101 Id. 142; 125 Id. 751; 61 S.E. 79; 18 Id. 584; 73 N.W. 573; 37 Mich. 205; 91 Id. 624; 74 Ind. 440; 35 W.Va. 500; 53 Oh. St. 43; 20 Col. 320; 177 Ill. 324; 100 S.W. 971; 86 Ark. 515; 82 Id. 537; 4 Thompson on Negl. (2d ed.) §§ 3721 to 5318, 4618, p. 638; Labott M. & S. 3310, 3326; 98 Ark. 211, 219, and cases cited; 86 Ark. 515; 90 Id. 568; 71 Id. 518, 578, and many others.

See also 92 Ark. 502; 124 Ark. 597; 122 Id. 232; 97 Id. 489; 30 Id. 376; 90 Id. 531; 191 S.W. 236, etc. No prejudicial error is shown.

OPINION

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

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

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 rightly. 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, 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; Arkansas Natural Gas. Co v. Lee, 115 Ark. 288, 171 S.W. 93. 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. ^[*] 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 machinist was acting...